Consti Finals.docx

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-72119 May 29, 1987 VALENTIN L. LEGASPI, petitioner, vs. CIVIL SERVICE COMMISSION, respondent. CORTES, J.: The fundamental right of the people to information on matters of public concern is invoked in this special civil action for mandamus instituted by petitioner Valentin L. Legaspi against the Civil Service Commission. The respondent had earlier denied Legaspi's request for information on the civil service eligibilities of certain persons employed as sanitarians in the Health Department of Cebu City. These government employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented themselves as civil service eligibles who passed the civil service examinations for sanitarians. Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and Mariano Agas, is guaranteed by the Constitution, and that he has no other plain, speedy and adequate remedy to acquire the information, petitioner prays for the issuance of the extraordinary writ of mandamus to compel the respondent Commission to disclose said information. This is not the first tune that the writ of mandamus is sought to enforce the fundamental right to information. The same remedy was resorted to in the case of Tanada et. al. vs. Tuvera et. al., (G.R. No. L-63915, April 24,1985,136 SCRA 27) wherein the people's right to be informed under the 1973 Constitution (Article IV, Section 6) was invoked in order to compel the publication in the Official Gazette of various presidential decrees, letters of instructions and other presidential issuances. Prior to the recognition of the right in said Constitution the statutory right to information provided for in the Land Registration Act (Section 56, Act 496, as amended) was claimed by a newspaper editor in another mandamus proceeding, this time to demand access to the records of the Register of Deeds for the purpose of gathering data on real estate transactions involving aliens (Subido vs. Ozaeta, 80 Phil. 383 [1948]). The constitutional right to information on matters of public concern first gained recognition in the Bill of Rights, Article IV, of the 1973 Constitution, which states: Sec. 6. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as may be provided by law. The foregoing provision has been retained and the right therein provided amplified in Article III, Sec. 7 of the 1987 Constitution with the addition of the phrase, "as well as to government research data used as basis for policy development." The new provision reads: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis. for policy development, shall be afforded the citizen, subject to such stations as may be provided by law. These constitutional provisions are self-executing. They supply the rules by means of which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the constitution without need for any ancillary act of the Legislature. (Id. at, p. 165) What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest (Constitution, Art. 11, Sec. 28). However, it cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter. Therefore, the right may be properly invoked in a mandamus proceeding such as this one.

The Solicitor General interposes procedural objections to Our giving due course to this Petition. He challenges the petitioner's standing to sue upon the ground that the latter does not possess any clear legal right to be informed of the civil service eligibilities of the government employees concerned. He calls attention to the alleged failure of the petitioner to show his actual interest in securing this particular information. He further argues that there is no ministerial duty on the part of the Commission to furnish the petitioner with the information he seeks. 1. To be given due course, a Petition for mandamus must have been instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right. (Ant;-Chinese League of the Philippines vs. Felix, 77 Phil. 1012 [1947]). The petitioner in every case must therefore be an "aggrieved party" in the sense that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be performed. In the case before Us, the respondent takes issue on the personality of the petitioner to bring this suit. It is asserted that, the instant Petition is bereft of any allegation of Legaspi's actual interest in the civil service eligibilities of Julian Sibonghanoy and Mariano Agas, At most there is a vague reference to an unnamed client in whose behalf he had allegedly acted when he made inquiries on the subject (Petition, Rollo, p. 3). But what is clear upon the face of the Petition is that the petitioner has firmly anchored his case upon the right of the people to information on matters of public concern, which, by its very nature, is a public right. It has been held that: * * * when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws * * * (Tanada et. al. vs. Tuvera, et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA 27, 36). From the foregoing, it becomes apparent that when a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general "public" which possesses the right. The Court had opportunity to define the word "public" in the Subido case, supra, when it held that even those who have no direct or tangible interest in any real estate transaction are part of the "public" to whom "(a)ll records relating to registered lands in the Office of the Register of Deeds shall be open * * *" (Sec. 56, Act No. 496, as amended). In the words of the Court: * * * "Public" is a comprehensive, all-inclusive term. Properly construed, it embraces every person. To say that only those who have a present and existing interest of a pecuniary character in the particular information sought are given the right of inspection is to make an unwarranted distinction. *** (Subido vs. Ozaeta, supra at p. 387). The petitioner, being a citizen who, as such is clothed with personality to seek redress for the alleged obstruction of the exercise of the public right. We find no cogent reason to deny his standing to bring the present suit. 2. For every right of the people recognized as fundamental, there lies a corresponding duty on the part of those who govern, to respect and protect that right. That is the very essence of the Bill of Rights in a constitutional regime. Only governments operating under fundamental rules defining the limits of their power so as to shield individual rights against its arbitrary exercise can properly claim to be constitutional (Cooley, supra, at p. 5). Without a government's acceptance of the limitations imposed upon it by the Constitution in order to uphold individual liberties, without an acknowledgment on its part of those duties exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty, the ultimate illusion. In recognizing the people's right to be informed, both the 1973 Constitution and the New Charter expressly mandate the duty of the State and its agents to afford access to official records, documents, papers and in addition, government research data used as basis for policy development, subject to such limitations as may be provided by law. The guarantee has been further enhanced in the New Constitution with the adoption of a policy of full public disclosure, this time "subject to reasonable conditions prescribed by law," in Article 11, Section 28 thereof, to wit:

Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Art. 11, Sec. 28). In the Tanada case, supra, the constitutional guarantee was bolstered by what this Court declared as an imperative duty of the government officials concerned to publish all important legislative acts and resolutions of a public nature as well as all executive orders and proclamations of general applicability. We granted mandamus in said case, and in the process, We found occasion to expound briefly on the nature of said duty: * * * That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be in included or excluded from such publication. (Tanada v. Tuvera, supra, at 39). (Emphasis supplied). The absence of discretion on the part of government agencia es in allowing the examination of public records, specifically, the records in the Office of the Register of Deeds, is emphasized in Subido vs. Ozaeta, supra: Except, perhaps when it is clear that the purpose of the examination is unlawful, or sheer, idle curiosity, we do not believe it is the duty under the law of registration officers to concern themselves with the motives, reasons, and objects of the person seeking access to the records. It is not their prerogative to see that the information which the records contain is not flaunted before public gaze, or that scandal is not made of it. If it be wrong to publish the contents of the records, it is the legislature and not the officials having custody thereof which is called upon to devise a remedy. *** (Subido v. Ozaeta, supra at 388). (Emphasis supplied). It is clear from the foregoing pronouncements of this Court that government agencies are without discretion in refusing disclosure of, or access to, information of public concern. This is not to lose sight of the reasonable regulations which may be imposed by said agencies in custody of public records on the manner in which the right to information may be exercised by the public. In the Subido case, We recognized the authority of the Register of Deeds to regulate the manner in which persons desiring to do so, may inspect, examine or copy records relating to registered lands. However, the regulations which the Register of Deeds may promulgate are confined to: * * * prescribing the manner and hours of examination to the end that damage to or loss of, the records may be avoided, that undue interference with the duties of the custodian of the books and documents and other employees may be prevented, that the right of other persons entitled to make inspection may be insured * * * (Subido vs. Ozaeta, 80 Phil. 383, 387) Applying the Subido ruling by analogy, We recognized a similar authority in a municipal judge, to regulate the manner of inspection by the public of criminal docket records in the case of Baldoza vs. Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14). Said administrative case was filed against the respondent judge for his alleged refusal to allow examination of the criminal docket records in his sala. Upon a finding by the Investigating Judge that the respondent had allowed the complainant to open and view the subject records, We absolved the respondent. In effect, We have also held that the rules and conditions imposed by him upon the manner of examining the public records were reasonable. In both the Subido and the Baldoza cases, We were emphatic in Our statement that the authority to regulate the manner of examining public records does not carry with it the power to prohibit. A distinction has to be made between the discretion to refuse outright the disclosure of or access to a particular information and the authority to regulate the manner in which the access is to be afforded. The first is a limitation upon the availability of access to the information sought, which only the Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to the government agency charged with the custody of public records. Its authority to regulate access is to be exercised solely to the end that damage to, or loss of, public records may be avoided, undue interference with the duties of said agencies may be prevented, and more importantly, that the exercise of the same constitutional right by other persons shall be assured (Subido vs. Ozaetal supra). Thus, while the manner of examining public records may be subject to reasonable regulation by the government agency in custody thereof, the duty to disclose the information of public concern, and to afford access to public records cannot be discretionary on the part of said agencies. Certainly, its performance cannot be made

contingent upon the discretion of such agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The constitutional duty, not being discretionary, its performance may be compelled by a writ of mandamus in a proper case. But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced and the concomitant duty of the State are unequivocably set forth in the Constitution. The decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether the information sought by the petitioner is within the ambit of the constitutional guarantee. 3. The incorporation in the Constitution of a guarantee of access to information of public concern is a recognition of the essentiality of the free flow of ideas and information in a democracy (Baldoza v. Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same way that free discussion enables members of society to cope with the exigencies of their time (Thornhill vs. Alabama, 310 U.S. 88,102 [1939]), access to information of general interest aids the people in democratic decisionmaking (87 Harvard Law Review 1505 [1974]) by giving them a better perspective of the vital issues confronting the nation. But the constitutional guarantee to information on matters of public concern is not absolute. It does not open every door to any and all information. Under the Constitution, access to official records, papers, etc., are "subject to limitations as may be provided by law" (Art. III, Sec. 7, second sentence). The law may therefore exempt certain types of information from public scrutiny, such as those affecting national security (Journal No. 90, September 23, 1986, p. 10; and Journal No. 91, September 24, 1986, p. 32, 1986 Constitutional Commission). It follows that, in every case, the availability of access to a particular public record must be circumscribed by the nature of the information sought, i.e., (a) being of public concern or one that involves public interest, and, (b) not being exempted by law from the operation of the constitutional guarantee. The threshold question is, therefore, whether or not the information sought is of public interest or public concern. a. This question is first addressed to the government agency having custody of the desired information. However, as already discussed, this does not give the agency concerned any discretion to grant or deny access. In case of denial of access, the government agency has the burden of showing that the information requested is not of public concern, or, if it is of public concern, that the same has been exempted by law from the operation of the guarantee. To hold otherwise will serve to dilute the constitutional right. As aptly observed, ". . . the government is in an advantageous position to marshall and interpret arguments against release . . ." (87 Harvard Law Review 1511 [1974]). To safeguard the constitutional right, every denial of access by the government agency concerned is subject to review by the courts, and in the proper case, access may be compelled by a writ of Mandamus. In determining whether or not a particular information is of public concern there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for adequate notice to the public of the various laws which are to regulate the actions and conduct of citizens. In Subido vs. Ozaeta, supra, the public concern deemed covered by the statutory right was the knowledge of those real estate transactions which some believed to have been registered in violation of the Constitution. The information sought by the petitioner in this case is the truth of the claim of certain government employees that they are civil service eligibles for the positions to which they were appointed. The Constitution expressly declares as a State policy that: Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and except as to positions which are policy determining, primarily confidential or highly technical, by competitive examination. (Art. IX, B, Sec. 2.[2]). Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles. Public officers are at all times accountable to the people even as to their eligibilities for their respective positions.

b. But then, it is not enough that the information sought is of public interest. For mandamus to lie in a given case, the information must not be among the species exempted by law from the operation of the constitutional guarantee. In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has failed to cite any provision in the Civil Service Law which would limit the petitioner's right to know who are, and who are not, civil service eligibles. We take judicial notice of the fact that the names of those who pass the civil service examinations, as in bar examinations and licensure examinations for various professions, are released to the public. Hence, there is nothing secret about one's civil service eligibility, if actually possessed. Petitioner's request is, therefore, neither unusual nor unreasonable. And when, as in this case, the government employees concerned claim to be civil service eligibles, the public, through any citizen, has a right to verify their professed eligibilities from the Civil Service Commission. The civil service eligibility of a sanitarian being of public concern, and in the absence of express limitations under the law upon access to the register of civil service eligibles for said position, the duty of the respondent Commission to confirm or deny the civil service eligibility of any person occupying the position becomes imperative. Mandamus, therefore lies. WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles for the position of sanitarian, and to confirm or deny, the civil service eligibility of Julian Sibonghanoy and Mariano Agas, for said position in the Health Department of Cebu City, as requested by the petitioner Valentin L. Legaspi. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur. Feliciano, J., is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 74930 February 13, 1989 RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL, petitioners, vs. FELICIANO BELMONTE, JR., respondent. Ricardo C. Valmonte for and in his own behalf and his co-petitioners. The Solicitor General for respondent.

CORTES, J.: Petitioners in this special civil action for mandamus with preliminary injunction invoke their right to information and pray that respondent be directed: (a) to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos; and/or (b) to furnish petitioners with certified true copies of the documents evidencing their respective loans; and/or (c) to allow petitioners access to the public records for the subject information. (Petition, pp. 4-5; paragraphing supplied.] The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter: June 4, 1986

Atty. 108 Caloocan City

Ricardo E.

C. Benin

Valmonte Street

Dear Compañero: Possibly because he must have thought that it contained serious legal implications, President & General Manager Feliciano Belmonte, Jr. referred to me for study and reply your letter to him of June 4, 1986 requesting a list of the opposition members of Batasang Pambansa who were able to secure a clean loan of P2 million each on guaranty of Mrs. Imelda Marcos. My opinion in this regard is that a confidential relationship exists between the GSIS and all those who borrow from it, whoever they may be; that the GSIS has a duty to its customers to preserve this confidentiality; and that it would not be proper for the GSIS to breach this confidentiality unless so ordered by the courts. As a violation of this confidentiality may mar the image of the GSIS as a reputable financial institution, I regret very much that at this time we cannot respond positively to your request. Very truly yours, (Sgd.) Deputy [Rollo, p. 40.]

MEYNARDO

A. General

TIRO Counsel

On June 20, 1986, apparently not having yet received the reply of the Government Service and Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte wrote respondent another letter, saying that for failure to receive a reply, "(W)e are now considering ourselves free to do whatever action necessary within the premises to pursue our desired objective in pursuance of public interest." [Rollo, p. 8.] On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.

Hon. GSIS Arroceros, Manila

Feliciano General

Belmonte Manager

Sir: As a lawyer, member of the media and plain citizen of our Republic, I am requesting that I be furnished with the list of names of the opposition members of (the) Batasang Pambansa who were able to secure a clean loan of P2 million each on guarranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel Lopez of Manila was one of those aforesaid MPs. Likewise, may we be furnished with the certified true copies of the documents evidencing their loan. Expenses in connection herewith shall be borne by us. If we could not secure the above documents could we have access to them?

On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of the defunct interim and regular Batasang Pambansa, including ten (10) opposition members, were granted housing loans by the GSIS [Rollo, p. 41.] Separate comments were filed by respondent Belmonte and the Solicitor General. After petitioners filed a consolidated reply, the petition was given due course and the parties were required to file their memoranda. The parties having complied, the case was deemed submitted for decision. In his comment respondent raises procedural objections to the issuance of a writ of mandamus, among which is that petitioners have failed to exhaust administrative remedies.

We are premising the above request on the following provision of the Freedom Constitution of the present regime.

Respondent claims that actions of the GSIS General Manager are reviewable by the Board of Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS Board of Trustees. It is therefore asserted that since administrative remedies were not exhausted, then petitioners have no cause of action.

The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions or decisions, shall be afforded the citizen subject to such limitation as may be provided by law. (Art. IV, Sec. 6).

To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not they are entitled to the documents sought, by virtue of their constitutional right to information. Hence, it is argued that this case falls under one of the exceptions to the principle of exhaustion of administrative remedies.

We trust that within five (5) days from receipt hereof we will receive your favorable response on the matter.

Among the settled principles in administrative law is 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. The courts for reasons of law, comity and convenience will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given opportunity to act and correct the errors committed in the administrative forum. However, the principle of exhaustion of administrative remedies is subject to settled exceptions, among which is when only a question of law is involved [Pascual v. Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.] The issue raised by petitioners, which requires the interpretation of the scope of the constitutional right to information, is one which can be passed upon by the regular

[Rollo, p. 7.] To the aforesaid letter, the Deputy General Counsel of the GSIS replied: June 17, 1986

courts more competently than the GSIS or its Board of Trustees, involving as it does a purely legal question. Thus, the exception of this case from the application of the general rule on exhaustion of administrative remedies is warranted. Having disposed of this procedural issue, We now address ourselves to the issue of whether or not mandamus hes to compel respondent to perform the acts sought by petitioners to be done, in pursuance of their right to information. We shall deal first with the second and third alternative acts sought to be done, both of which involve the issue of whether or not petitioners are entitled to access to the documents evidencing loans granted by the GSIS. This is not the first time that the Court is confronted with a controversy directly involving the constitutional right to information. In Tañada v. Tuvera, G.R. No. 63915, April 24,1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987,150 SCRA 530, the Court upheld the people's constitutional right to be informed of matters of public interest and ordered the government agencies concerned to act as prayed for by the petitioners.

concern," and is further "subject to such limitations as may be provided by law." Similarly, the State's policy of full disclosure is limited to "transactions involving public interest," and is "subject to reasonable conditions prescribed by law." Hence, before mandamus may issue, it must be clear that the information sought is of "public interest" or "public concern," and is not exempted by law from the operation of the constitutional guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.] The Court has always grappled with the meanings of the terms "public interest" and "public concern". As observed in Legazpi: In determining whether or not a particular information is of public concern there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citezen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. [Ibid. at p. 541]

The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of which provided: The right of the people to information on 'matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as may be provided by law. An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the democratic government envisioned under our Constitution. The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated. The postulate of public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of governmental power, would certainly be were empty words if access to such information of public concern is denied, except under limitations prescribed by implementing legislation adopted pursuant to the Constitution. Petitioners are practitioners in media. As such, they have both the right to gather and the obligation to check the accuracy of information the disseminate. For them, the freedom of the press and of speech is not only critical, but vital to the exercise of their professions. The right of access to information ensures that these freedoms are not rendered nugatory by the government's monopolizing pertinent information. For an essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may 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. 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 freedoms of speech and of the press. Far from it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure * and honesty in the public service. ** It is meant to enhance the widening role of the citizenry in governmental decisionmaking as well as in checking abuse in government. Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in Legaspi, the people's right to information is limited to "matters of public

In the Tañada case the public concern deemed covered by the constitutional right to information was the need for adequate notice to the public of the various laws which are to regulate the actions and conduct of citezens. In Legaspi, it was the "legitimate concern of citezensof ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles" [Supra at p. 539.] The information sought by petitioners in this case is the truth of reports that certain Members of the Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the GSIS immediately before the February 7, 1986 election through the intercession of th eformer First Lady, Mrs. Imelda Marcos. The GSIS is a trustee of contributions from the government and its employees and the administrator of various insurance programs for the benefit of the latter. Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the Revised Government Service Insurance Act of 1977), provide for annual appropriations to pay the contributions, premiums, interest and other amounts payable to GSIS by the government, as employer, as well as the obligations which the Republic of the Philippines assumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected to manage its resources with utmost prudence and in strict compliance with the pertinent laws or rules and regulations. Thus, one of the reasons that prompted the revision of the old GSIS law (C.A. No. 186, as amended) was the necessity "to preserve at all times the actuarial solvency of the funds administered by the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent himself admits, the GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It is therefore the legitimate concern of the public to ensure that these funds are managed properly with the end in view of maximizing the benefits that accrue to the insured government employees. Moreover, the supposed borrowers were Members of the defunct Batasang Pambansa who themselves appropriated funds for the GSIS and were therefore expected to be the first to see to it that the GSIS performed its tasks with the greatest degree of fidelity and that an its transactions were above board. In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information sought clearly a matter of public interest and concern. A second requisite must be met before the right to information may be enforced through mandamus proceedings, viz., that the information sought must not be among those excluded by law. Respondent maintains that a confidential relationship exists between the GSIS and its borrowers. It is argued that a policy of confidentiality restricts the indiscriminate dissemination of information. Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as regards the documents subject of this petition. His position is apparently based merely on considerations of policy. The judiciary does not settle policy issues. The Court can only declare what the law is, and not what the law should be. Under our system of government, policy issues are within the domain of the political branches of the government, and of the people themselves as the repository of all State power.

Respondent however contends that in view of the right to privacy which is equally protected by the Constitution and by existing laws, the documents evidencing loan transactions of the GSIS must be deemed outside the ambit of the right to information.

Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify the exclusion of the transactions from the coverage and scope of the right to information.

There can be no doubt that right to privacy is constitutionally protected. In the landmark case of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking through then Mr. Justice Fernando, stated:

Moreover, the intent of the members of the Constitutional Commission of 1986, to include government-owned and controlled corporations and transactions entered into by them within the coverage of the State policy of fun public disclosure is manifest from the records of the proceedings:

... The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. UItimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute. state, In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly important as modem society has developed. All the forces of technological age — industrialization, urbanization, and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society." [at pp. 444-445.] When the information requested from the government intrudes into the privacy of a citizen, a potential conflict between the rights to information and to privacy may arise. However, the competing interests of these rights need not be resolved in this case. Apparent from the above-quoted statement of the Court in Morfe is that the right to privacy belongs to the individual in his private capacity, and not to public and governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities like the GSIS. As held in the case of Vassar College v. Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name since the entire basis of the right to privacy is an injury to the feelings and sensibilities of the party and a corporation would have no such ground for relief.

xxx xxx xxx THE PRESIDING OFFICER (Mr. Colayco). Commissioner Suarez is recognized. MR. SUAREZ. Thank you. May I ask the Gentleman a few question? MR. OPLE. Very gladly. MR. SUAREZ. Thank you. When we declare a "policy of full public disclosure of all its transactions" — referring to the transactions of the State — and when we say the "State" which I suppose would include all of the various agencies, departments, ministries and instrumentalities of the government.... MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer. MR. SUAREZ. Including government-owned and controlled corporations. MR. OPLE. That is correct, Mr. Presiding Officer.

Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its borrowers. The right is purely personal in nature [Cf. Atkinson v. John Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked only by the person whose privacy is claimed to be violated. It may be observed, however, that in the instant case, the concerned borrowers themselves may not succeed if they choose to invoke their right to privacy, considering the public offices they were holding at the time the loans were alleged to have been granted. It cannot be denied that because of the interest they generate and their newsworthiness, public figures, most especially those holding responsible positions in government, enjoy a more limited right to privacy as compared to ordinary individuals, their actions being subject to closer public scrutiny [Cf.Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).] Respondent next asserts that the documents evidencing the loan transactions of the GSIS are private in nature and hence, are not covered by the Constitutional right to information on matters of public concern which guarantees "(a)ccess to official records, and to documents, and papers pertaining to official acts, transactions, or decisions" only. It is argued that the records of the GSIS, a government corporation performing proprietary functions, are outside the coverage of the people's right of access to official records. It is further contended that since the loan function of the GSIS is merely incidental to its insurance function, then its loan transactions are not covered by the constitutional policy of full public disclosure and the right to information which is applicable only to "official" transactions. First of all, the "constituent — ministrant" dichotomy characterizing government function has long been repudiated. In ACCFA v. Confederation of Unions and Government Corporations and Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA 6441, the Court said that the government, whether carrying out its sovereign attributes or running some business, discharges the same function of service to the people.

MR. SUAREZ. And when we say "transactions" which should be distinguished from contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself? MR. OPLE. The "transactions" used here I suppose is generic and, therefore, it can cover both steps leading to a contract, and already a consummated contract, Mr. Presiding Officer. MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the transaction. MR. OPLE. Yes, subject only to reasonable safeguards on the national interest. MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-25.] (Emphasis supplied.) Considering the intent of the framers of the Constitution which, though not binding upon the Court, are nevertheless persuasive, and considering further that government-owned and controlled corporations, whether performing proprietary or governmental functions are accountable to the people, the Court is convinced that transactions entered into by the GSIS, a government-controlled corporation created by special legislation are within the ambit of the people's right to be informed pursuant to the constitutional policy of transparency in government dealings. In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to reasonable regulations that the latter may promulgate relating to the manner and hours of examination, to the end that damage to 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 v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the second and third alternative acts sought to be done by petitioners, is meritorious. However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to furnish petitioners the list of the names of the Batasang Pambansa members

belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos." Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the Constitution does not accord them a 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. It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined, clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to perform the act required. The corresponding duty of the respondent to perform the required act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this standard, there being no duty on the part of respondent to prepare the list requested. WHEREFORE, the instant petition is hereby granted and respondent General Manager of the Government Service Insurance System is ORDERED to allow petitioners access to documents and records evidencing loans granted to Members of the former Batasang Pambansa, as petitioners may specify, subject to reasonable regulations as to the time and manner of inspection, not incompatible with this decision, as the GSIS may deem necessary. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea and Regalado, JJ., concur.

( S g d . ) R I C A R D O C . V A L M O

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 130716 December 9, 1998 FRANCISCO I. CHAVEZ, petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and MAGTANGGOL GUNIGUNDO (in his capacity as chairman of the PCGG), respondents, GLORIA A. JOPSON, CELNAN A. JOPSON, SCARLET A. JOPSON, and TERESA A. JOPSON, petitioners-in-intervention.

PANGANIBAN, J.: Petitioner asks this Court to define the nature and the extent of the people's constitutional right to information on matters of public concern. Does this right include access to the terms of government negotiations prior to their consummation or conclusion? May the government, through the Presidential Commission on Good Government (PCGG), be required to reveal the proposed terms of a compromise agreement with the Marcos heirs as regards their alleged ill-gotten wealth? More specifically, are the "General Agreement" and "Supplemental Agreement," both dated December 28, 1993 and executed between the PCGG and the Marcos heirs, valid and binding? The Case These are the main questions raised in this original action seeking (1) to prohibit and "[e]njoin respondents [PCGG and its chairman] from privately entering into, perfecting and/or executing any greement with the heirs of the late President Ferdinand E. Marcos . . . relating to and concerning the properties and assets of Ferdinand Marcos located in the Philippines and/or abroad — including the so-called Marcos gold hoard"; and (2) to "[c]ompel respondent[s] to make public all negotiations and agreement, be they ongoing or perfected, and all documents related to or relating to such negotiations and agreement between the PCGG and the Marcos heirs."1 The Facts Petitioner Francisco I. Chavez, as "taxpayer, citizen and former government official who initiated the prosecution of the Marcoses and their cronies who committed unmitigated plunder of the public treasury and the systematic subjugation of the country's economy," alleges that what impelled him to bring this action were several news reports 2 bannered in a number of broadsheets sometime in September 1997. These news items referred to (1) the alleged discovery of billions of dollars of Marcos assets deposited in various coded accounts in Swiss banks; and (2) the reported execution of a compromise, between the government (through PCGG) and the Marcos heirs, on how to split or share these assets. Petitioner, invoking his constitutional right to information 3 and the correlative duty of the state to disclose publicly all its transactions involving the national interest,4 demands that respondents make public any and all negotiations and agreements pertaining to PCGG's task of recovering the Marcoses' ill-gotten wealth. He claims that any compromise on the alleged billions of ill-gotten wealth involves an issue of "paramount public interest," since it has a "debilitating effect on the country's economy" that would be greatly prejudicial to the national interest of the Filipino people. Hence, the people in general have a right to know the transactions or deals being contrived and effected by the government. Respondents, on the other hand, do not deny forging a compromise agreement with the Marcos heirs. They claim, though, that petitioner's action is premature, because there is no showing that he has asked the PCGG to disclose the negotiations and the Agreements. And even if he has, PCGG may not yet be compelled to make any disclosure, since the proposed terms and conditions of the Agreements have not become effective and binding. Respondents further aver that the Marcos heirs have submitted the subject Agreements to the Sandiganbayan for its approval in Civil Case No. 141, entitled Republic v. Heirs of Ferdinand E. Marcos, and that the Republic opposed such move on the principal grounds that (1) said Agreements have not been ratified by or even submitted to the President for approval, pursuant to Item No. 8 of the General

Agreement; and (2) the Marcos heirs have failed to comply with their undertakings therein, particularly the collation and submission of an inventory of their assets. The Republic also cited an April 11, 1995 Resolution in Civil Case No. 0165, in which the Sandiganbayan dismissed a similar petition filed by the Marcoses' attorney-in-fact. Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum 5 to then PCGG Chairman Magtanggol Gunigundo, categorically stated: This is to reiterate my previous position embodied in the Palace Press Release of 6 April 1995 that I have not authorized you to approve the Compromise Agreements of December 28, 1993 or any agreement at all with the Marcoses, and would have disapproved them had they been submitted to me. The Full Powers of Attorney of March 1994 and July 4, 1994, did not authorize you to approve said Agreements, which I reserve for myself as President of the Republic of the Philippines. The assailed principal Agreement 6 reads: GENERAL AGREEMENT KNOW ALL MEN BY THESE PRESENTS: This Agreement entered into this 28th day of December, 1993, by and between — The Republic of the Philippines, through the Presidential Commission on Good Government (PCGG), a governmental agency vested with authority defined under Executive Orders Nos. 1, 2 and 14, with offices at the philcomcen Building, Pasig, Metro Manila, represented by its Chairman referred to as FIRST PARTY, — and — Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro Manila, and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively referred to as the PRIVATE PARTY. W I T N E S S E T H: WHEREAS, the PRIVATE PARTY has been impelled by their sense of nationalism and love of country and of the entire Filipino people, and their desire to set up a foundation and finance impact projects like installation of power plants in selected rural areas and initiation of other community projects for the empowerment of the people; WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal of December 21, 1990, that the $356 million belongs in principle to the Republic of the Philippines provided certain conditionalities are met, but even after 7 years, the FIRST PARTY has not been able to procure a final judgment of conviction against the PRIVATE PARTY; WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out litigation which, as proven by the past 7 years, is consuming money, time and effort, and is counterproductive and ties up assets which the FIRST PARTY could otherwise utilize for its Comprehensive Agrarian Reform Program, and other urgent needs; WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy of unity and reconciliation in order to bind the nation's wounds and start the process of rebuilding this nation as it goes on to the twenty-first century; WHEREAS, this Agreement settles all claims and counterclaims which the parties may have against one another, whether past, present, or future, matured or inchoate. NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein, the parties agree as follows:

1. The parties will collate all assets presumed to be owned by, or held by other parties for the benefit of, the PRIVATE PARTY for purposes of determining the totality of the assets covered by the settlement. The subject assets shall be classified by the nature thereof, namely: (a) real estate; (b) jewelry; (c) paintings and other works of art; (d) securities; (e) funds on deposit; (f) precious metals, if any, and (g) miscellaneous assets or assets which could not appropriately fall under any of the preceding classification. The list shall be based on the full disclosure of the PRIVATE PARTY to insure its accuracy. 2. Based on the inventory, the FIRST PARTY shall determine which shall be ceded to the FIRST PARTY, and which shall be assigned to/retained by the PRIVATE PARTY. The assets of the PRIVATE PARTY shall be net of and exempt from, any form of taxes due the Republic of the Philippines. However, considering the unavailability of all pertinent and relevant documents and information as to balances and ownership, the actual specification of assets to be retained by the PRIVATE PARTY shall be covered by supplemental agreements which shall form part of this Agreement. 3. Foreign assets which the PRIVATE PARTY shall fully disclose but which are held by trustees, nominees, agents or foundations are hereby waived over by the PRIVATE PARTY in favor of the FIRST PARTY. For this purpose, the parties shall cooperate in taking the appropriate action, judicial and/or extrajudicial, to recover the same for the FIRST PARTY. 4. All disclosures of assets made by the PRIVATE PARTY shall not be used as evidence by the FIRST PARTY in any criminal, civil, tax or administrative case, but shall be valid and binding against said PARTY for use by the FIRST PARTY in withdrawing any account and/or recovering any asset. The PRIVATE PARTY withdraws any objection to the withdrawal by and/or release to the FIRST PARTY by the Swiss banks and/or Swiss authorities of the $356 million, its accrued interests, and/or any other account; over which the PRIVATE PARTY waives any right, interest or participation in favor of the FIRST PARTY. However, any withdrawal or release of any account aforementioned by the FIRST PARTY shall be made in the presence of any authorized representative of the PRIVATE PARTY. 5. The trustees, custodians, safekeepers, depositaries, agents, nominees, administrators, lawyers, or any other party acting in similar capacity in behalf of the PRIVATE PARTY are hereby informed through this General Agreement to insure that it is fully implemented and this shall serve as absolute authority from both parties for full disclosure to the FIRST PARTY of said assets and for the FIRST PARTY to withdraw said account and/or assets and any other assets which the FIRST PARTY on its own or through the help of the PRIVATE PARTY/their trustees, etc., may discover. 6. Any asset which may be discovered in the future as belonging to the PRIVATE PARTY or is being held by another for the benefit of the PRIVATE PARTY and which is not included in the list per No. 1 for whatever reason shall automatically belong to the FIRST PARTY, and the PRIVATE PARTY in accordance with No. 4 above, waives any right thereto. 7. This Agreement shall be binding on and inure to the benefit of, the parties and their respective legal representatives, successors and assigns and shall supersede any other prior agreement. 8. The PARTIES shall submit this and any other implementing Agreements to the President of the Philippines for approval. In the same manner, the PRIVATE PARTY shall provide the FIRST PARTY assistance by way of testimony or deposition on any information it may have that could shed light on the cases being pursued by the FIRST PARTY against other parties. The FIRST PARTY shall desist from instituting new suits already subject of this Agreement against the PRIVATE PARTY and cause the dismissal of all other cases pending in the Sandiganbayan and in other courts. 9. In case of violation by the PRIVATE PARTY of any of the conditions herein contained, the PARTIES shall be restored automatically to the status quo ante the signing of this Agreement. For purposes of this Agreement, the PRIVATE PARTY shall be represented by Atty. Simeon M. Mesina, Jr., as their only Attorney-in-Fact.

GOOD GOVERNMENT By: [Sgd.] MAGTANGGOL C. GUNIGUNDO Chairman ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA. IMELDA MARCOS-MANOTOC, FERDINAND R. MARCOS, JR., & IRENE MARCOSARANETA By: [Sgd.] IMELDA ROMUALDEZ-MARCOS [Sgd.] MA. IMELDA MARCOS-MANOTOC FERDINAND R. MARCOS, JR.9 [Sgd.] IRENE MARCOS-ARANETA Assisted by: [Sgd.] ATTY. SIMEON M. MESINA, JR. Counsel & Attorney-in-Fact Acting on a motion of petitioner, the Court issued a Temporary Restraining Order 10 dated March 23, enjoining respondents, their agents and/or representatives from "entering into, or perfecting and/or executing any agreement with the heirs of the late President Ferdinand E. Marcos relating to and concerning their ill-gotten wealth." Issues The Oral Argument, held on March 16, 1998, focused on the following issues: (a) Procedural: (1) Whether or not the petitioner has the personality or legal standing to file the instant petition; and (2) Whether or not this Court is the proper court before which this action may be filed. (b) Substantive: (1) Whether or not this Court could require the PCGG to disclose to the public the details of any agreement, perfected or not, with the Marcoses; and (2) Whether or not there exist any legal restraints against a compromise agreement between the Marcoses and the PCGG relative to the Marcoses' ill-gotten wealth. 11 After their oral presentations, the parties filed their respective memoranda. On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed before the Court a Motion for Intervention, attaching thereto their Petition in Intervention. They aver that they are "among the 10,000 claimants whose right to claim from the Marcos Family and/or the Marcos Estate is recognized by the decision in In re Estate of Ferdinand Marcos, Human Rights Litigation, Maximo Hilao, et al., Class Plaintiffs No. 92-15526, U.S. Court of Appeals for the 9th Circuit US App. Lexis 14796, June 16, 1994 and the Decision of the Swiss Supreme Court of December 10, 1997." As such, they claim to have personal and direct interest in the subject matter of the instant case, since a distribution or disposition of the Marcos properties may adversely affect their legitimate claims. In a minute Resolution issued on August 24, 1998, the Court granted their motion to intervene and required the respondents to comment thereon. The September 25, 1998 Comment 12 of the solicitor general on said motion merely reiterated his aforecited arguments against the main petition. 13 The Court's Ruling The petition id imbued with merit.

IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in Makati, Metro Manila.

First Procedural Issue:

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT

Petitioner's Standing

Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal personality to file the instant petition. He submits that since ill-gotten wealth "belongs to the Filipino people and [is], in truth hand in fact, part of the public treasury," any compromise in relation to it would constitute a diminution of the public funds, which can be enjoined by a taxpayer whose interest is for a full, if not substantial, recovery of such assets. Besides, petitioner emphasize, the matter of recovering the ill-gotten wealth of the Marcoses is an issue "of transcendental importance the public." He asserts that ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of acts or orders of government agencies or instrumentalities, if the issues raised are "of paramount public interest;" and if they "immeasurably affect the social, economic, and moral well-being of the people." Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the proceeding involves the assertion of a public right, 14 such as in this case. He invokes several decisions 15 of this Court which have set aside the procedural matter of locus standi, when the subject of the case involved public interest. On the other hand, the solicitor general, on behalf of respondents, contends that petitioner has no standing to institute the present action, because no expenditure of public funds is involved and said petitioner has no actual interest in the alleged agreement. Respondents further insist that the instant petition is premature, since there is no showing that petitioner has requested PCGG to disclose any such negotiations and agreements; or that, if he has, the Commission has refused to do so. Indeed, the arguments cited by petitioner constitute the controlling decisional rule as regards his legal standing to institute the instant petition. Access to public documents and records is a public right, and the real parties in interest are the people themselves. 16 In Tañada v. Tuvera, 17 the Court asserted that when the issue concerns a public a right and the object of mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties in interest; and because it is sufficient that petitioner is a citizen and as such is interested in the execution of the laws, he need not show that he has any legal or special interest in the result of the action. 18 In the aforesaid case, the petitioners sought to enforce their right to be informed on matters of public concern, a right then recognized in Section 6, Article IV of the 1973 Constitution, 19 in connection with the rule that laws in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they sought to be enforced "is a public right recognized by no less than the fundamental law of the land."

The Court's Jurisdiction Petitioner asserts that because this petition is an original action for mandamus and one that is not intended to delay any proceeding in the Sandiganbayan, its having been filed before this Court was proper. He invokes Section 5, Article VIII of the Constitution, which confers upon the Supreme Court original jurisdiction over petitions for prohibition and mandamus. The solicitor general, on the other hand, argues that the petition has been erroneously brought before this Court, since there is neither a justiciable controversy nor a violation of petitioner's rights by the PCGG. He alleges that the assailed agreements are already the very lis mota in Sandiganbayan Civil Case No. 0141, which has yet to dispose of the issue; thus, this petition is premature. Furthermore, respondents themselves have opposed the Marcos heirs' motion, filed in the graft court, for the approval of the subject Agreements. Such opposition belies petitioner's claim that the government, through respondents, has concluded a settlement with the Marcoses as regards their alleged ill-gotten assets. In Tañada and Legaspi, we upheld therein petitioners' resort to a mandamus proceeding, seeking to enforce a public right as well as to compel performance of a public duty mandated by no less than the fundamental law. 23 Further, Section 5, Article VIII of the Constitution, expressly confers upon the Supreme Court original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus. Respondents argue that petitioner should have properly sought relief before the Sandiganbayan, particularly in Civil Case No. 0141, in which the enforcement of the compromise Agreements is pending resolution. There may seem to be some merit in such argument, if petitioner is merely seeking to enjoin the enforcement of the compromise and/or to compel the PCGG to disclose to the public the terms contained in said Agreements. However, petitioner is here seeking the public disclose of "all negotiations and agreement, be they ongoing or perfected, and documents related to or relating to such negotiations and agreement between the PCGG and the Marcos heirs." In other words, this petition is not confined to the Agreements that have already been drawn, but likewise to any other ongoing or future undertaking towards any settlement on the alleged Marcos loot. Ineluctably, the core issue boils down to the precise interpretation, in terms of scope, of the twin constitutional provisions on "public transactions." This broad and prospective relief sought by the instant petition brings it out of the realm of Civil Case No. 0141. First Substantive Issue:

Legaspi v. Civil Service Commission, 20 while reiterating Tañada, further declared that "when a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general 'public' which possesses the right." 21

Public Disclosure of Terms of Any Agreement, Perfected or Not

22

Further, in Albano v. Reyes, we said that while expenditure of public funds may not have been involved under the questioned contract for the development, the management and the operation of the Manila International Container Terminal, "public interest [was] definitely involved considering the important role [of the subject contract] . . . in the economic development of the country and the magnitude of the financial consideration involved." We concluded that, as a consequence, the disclosure provision in the Constitution would constitute sufficient authority for upholding the petitioner's standing. Similarly, the instant petition is anchored on the right of the people to information and access to official records, documents and papers — a right guaranteed under Section 7, Article III of the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of the satisfaction of the two basic requisites laid down by decisional law to sustain petitioner's legal standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we rule that the petition at bar should be allowed. In any event, the question on the standing of Petitioner Chavez is rendered moot by the intervention of the Jopsons, who are among the legitimate claimants to the Marcos wealth. The standing of the Jopsons is not seriously contested by the solicitor general. Indeed, said petitioners-intervenors have a legal interest in the subject matter of the instant case, since a distribution or disposition of the Marcoses' ill-gotten properties may adversely affect the satisfaction of their claims. Second Procedural Issue:

In seeking the public disclosure of negotiations and agreements pertaining to a compromise settlement with the Marcoses as regards their alleged ill-gotten wealth, petitioner invokes the following provisions of the Constitution: Sec. 7 [Article III]. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Sec. 28 [Article II]. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. Respondents' opposite view is that the above constitutional provisions refer to completed and operative official acts, not to those still being considered. As regards the assailed Agreements entered into by the PCGG with the Marcoses, there is yet no right of action that has accrued, because said Agreements have not been approved by the President, and the Marcos heirs have failed to fulfill their express undertaking therein. Thus, the Agreements have not become effective. Respondents add that they

are not aware of any ongoing negotiation for another compromise with the Marcoses regarding their alleged ill-gotten assets. The "information" and the "transactions" referred to in the subject provisions of the Constitution have as yet no defined scope and extent. There are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged. However, the following are some of the recognized restrictions: (1) national security matters and intelligence information, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information. Limitations to the Right: (1) National Security Matters At the very least, this jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters. 24But where there is no need to protect such state secrets, the privilege may not be invoked to withhold documents and other information, 25 provided that they are examined "in strict confidence" and given "scrupulous protection." Likewise, information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest. 26

In determining whether or not a particular information is of public concern there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. Considered a public concern in the above-mentioned case was the "legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles." So was the need to give the general public adequate notification of various laws that regulate and affect the actions and conduct of citizens, as held in Tañada. Likewise did the "public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers (members of the defunct Batasang Pambansa)" qualify the information sought inValmonte as matters of public interest and concern. In Aquino-Sarmiento v. Morato, 36 the Court also held that official acts of public officers done in pursuit if their official functions are public in character; hence, the records pertaining to such official acts and decisions are within the ambit of the constitutional right of access to public records. Under Republic Act No. 6713, public officials and employees are mandated to "provide information on their policies and procedures in clear and understandable language, [and] ensure openness of information, public consultations and hearings whenever appropriate . . .," except when "otherwise provided by law or when required by the public interest." In particular, the law mandates free public access, at reasonable hours, to the annual performance reports of offices and agencies of government and government-owned or controlled corporations; and the statements of assets, liabilities and financial disclosures of all public officials and employees. 37

(2) Trade Secrets and Banking Transactions The drafters of the Constitution also unequivocally affirmed that, aside from national security matters and intelligence information, trade or industrial secrets (pursuant to the Intellectual Property Code 27 and other related laws) as well as banking transactions (pursuant to the Secrecy of Bank Deposits Act 28) are also exempted from compulsory disclosure. 29 (3) Criminal Matters Also excluded are classified law enforcement matters, such as those relating to the apprehension, the prosecution and the detention of criminals, 30 which courts may nor inquire into prior to such arrest, detention and prosecution. Efforts at effective law enforcement would be seriously jeopardized by free public access to, for example, police information regarding rescue operations, the whereabouts of fugitives, or leads on covert criminal activities.

In general, writings coming into the hands of public officers in connection with their official functions must be accessible to the public, consistent with the policy of transparency of governmental affairs. This principle is aimed at affording the people an opportunity to determine whether those to whom they have entrusted the affairs of the government are honesty, faithfully and competently performing their functions as public servants. 38 Undeniably, the essence of democracy lies in the free flow of thought; 39 but thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable and effective manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people. 40 The Nature of the Marcoses' Alleged Ill-Gotten Wealth We now come to the immediate matter under consideration.

(4) Other Confidential Information The Ethical Standards Act 31 further prohibits public officials and employees from using or divulging "confidential or classified information officially known to them by reason of their office and not made available to the public." 32 Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court. 33 Scope: Matters of Public Concern and Transactions Involving Public Interest In Valmonte v. Belmonte Jr., 34 the Court emphasized that the information sought must be "matters of public concern," access to which may be limited by law. Similarly, the state policy of full public disclosure extends only to "transactions involving public interest" and may also be "subject to reasonable conditions prescribed by law." As to the meanings of the terms "public interest" and "public concern," the Court, in Legaspi v. Civil Service Commission, 35 elucidated:

Upon the departure from the country of the Marcos family and their cronies in February 1986, the new government headed by President Corazon C. Aquino was specifically mandated to "[r]ecover ill-gotten properties amassed by the leaders and supporters of the previous regime and [to] protect the interest of the people through orders of sequestration or freezing of assets or accounts." 41 Thus, President Aquino's very first executive orders (which partook of the nature of legislative enactments) dealt with the recovery of these alleged ill-gotten properties. Executive Order No. 1, promulgated on February 28, 1986, only two (2) days after the Marcoses fled the country, created the PCGG which was primarily tasked to assist the President in the recovery of vast government resources allegedly amassed by former President Marcos, his immediate family, relatives and close associates both here and abroad. Under Executive Order No. 2, issued twelve (12) days later, all persons and entities who had knowledge or possession of ill-gotten assets and properties were warned and, under pain of penalties prescribed by law, prohibited from concealing, transferring or dissipating them or from otherwise frustrating or obstructing the recovery efforts of the government. On May 7, 1986, another directive (EO No. 14) was issued giving additional powers to the PCGG which, taking into account the overriding considerations of national interest

and national survival, required it to achieve expeditiously and effectively its vital task of recovering ill-gotten wealth. With such pronouncements of our government, whose authority emanates from the people, there is no doubt that the recovery of the Marcoses' alleged ill-gotten wealth is a matter of public concern and imbued with public interest. 42 We may also add that "ill-gotten wealth," by its very nature, assumes a public character. Based on the aforementioned Executive Orders, "ill-gotten wealth" refers to assets and properties purportedly acquired, directly or indirectly, by former President Marcos, his immediate family, relatives and close associates through or as a result of their improper or illegal use of government funds or properties; or their having taken undue advantage of their public office; or their use of powers, influences or relationships, "resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines." Clearly, the assets and properties referred to supposedly originated from the government itself. To all intents and purposes, therefore, they belong to the people. As such, upon reconveyance they will be returned to the public treasury, subject only to the satisfaction of positive claims of certain persons as may be adjudged by competent courts. Another declared overriding consideration for the expeditious recovery of ill-gotten wealth is that it may be used for national economic recovery. We believe the foregoing disquisition settles the question of whether petitioner has a right to respondents' disclosure of any agreement that may be arrived at concerning the Marcoses' purported ill-gotten wealth.

Respondents, for their part, assert that there is no legal restraint on entering into a compromise with the Marcos heirs, provided the agreement does not violate any law. Prohibited Compromises In general, the law encourages compromises in civil cases, except with regard to the following matters: (1) the civil status of persons, (2) the validity of a marriage or a legal separation, (3) any ground for legal separation, (4) future support, (5) the jurisdiction of courts, and (6) future legitimate. 45 And like any other contract, the terms and conditions of a compromise must not be contrary to law, morals, good customs, public policy or public order. 46 A compromise is binding and has the force of law between the parties, 47 unless the consent of a party is vitiated — such as by mistake, fraud, violence, intimidation or undue influence — or when there is forgery, or if the terms of the settlment are so palpably unconscionable. In the latter instances, the agreement may be invalidated by the courts. 48 Effect of Compromise on Civil Actions One of the consequences of a compromise, and usually its primary object, is to avoid or to end a litigation. 49 In fact, the law urges courts to persuade the parties in a civil case to agree to a fair settlement. 50 As an incentive, a court may mitigate damages to be paid by a losing party who shows a sincere desire to compromise. 51

Access to Information on Negotiating Terms But does the constitutional provision likewise guarantee access to information regarding ongoing negotiations or proposals prior to the final agreement? This same clarification was sought and clearly addressed by the constitutional commissioners during their deliberations, which we quote hereunder: 43 MR. SUAREZ. And when we say "transactions" which should be distinguished from contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself? MR. OPLE. The "transactions" used here, I suppose, is generic and, therefore, it can cover both steps leading to a contract, and already a consummated contract, Mr. Presiding Officer. MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the transaction? MR. OPLE. Yes, subject to reasonable safeguards on the national interest. Considering the intent of the Constitution, we believe that it is incumbent upon the PCGG and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the government, not necessarily to intraagency or inter-agency recommendations or communications 44 during the stage when common assertions are still in the process of being formulated or are in the "exploratory" stage. There is a need, of course, to observe the same restrictions on disclosure of information in general, as discussed earlier — such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified information. Second Substantive Issue: Legal Restraints on a Marcos-PCGG Compromise Petitioner lastly contends that any compromise agreement between the government and the Marcoses will be a virtual condonation of all the alleged wrongs done by them, as well as an unwarranted permission to commit graft and corruption.

In Republic & Campos Jr. v. Sandiganbayan, 52 which affirmed the grant by the PCGG of civil and criminal immunity to Jose Y. Campos and the family, the Court held that in the absence an express prohibition, the rule on compromises in civil actions under the Civil Code is applicable to PCGG cases. Such principle is pursuant to the objectives of EO No. 14 particularly the just and expeditious recovery of ill-gotten wealth, so that it may be used to hasten economic recovery. The same principle was upheld in Benedicto v. Board of Administrators of Television Stations RPN, BBC and IBC 53 and Republic v. Benedicto, 54 which ruled in favor of the validity of the PCGG compromise agreement with Roberto S. Benedicto. Immunity from Criminal Prosecution However, any compromise relating to the civil liability arising from an offense does not automatically terminate the criminal proceeding against or extinguish the criminal liability of the malefactor. 55 While a compromise in civil suits is expressly authorized by law, there is no similar general sanction as regards criminal liability. The authority must be specifically conferred. In the present case, the power to grant criminal immunity was confered on PCGG by Section 5 of EO No. 14, as amended by EO No. 14A, whci provides: Sec. 5. The President Commission on Good Government is authorized to grant immunity from criminal prosecution to any person who provides information or testifies in any investigation conducted by such Commission to establish the unlawful manner in which any respondent, defendant or accused has acquired or accumulated the property or properties in question in any case where such information or testimony is necessary to ascertain or prove the latter's guilt or his civil liability. The immunity thereby granted shall be continued to protect the witness who repeats such testimony before the Sandiganbayan when required to do so by the latter or by the Commission. The above provision specifies that the PCGG may exercise such authority under these conditions: (1) the person to whom criminal immunity is granted provides information or testifies in an investigation conducted by the Commission; (2) the information or testimony pertains to the unlawful manner in which the respondent, defendant or accused acquired or accumulated ill-gotten property; and (3) such information or testimony is necessary to ascertain or prove guilt or civil liability of such individual. From the wording of the law, it can be easily deducted that theperson referred to is a witness in the proceeding, not the principal respondent, defendant or accused. Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to him and his family was "[i]n consideration of the full cooperation of Mr. Jose Y.

Campos [with] this Commission, his voluntary surrender of the properties and assets [—] disclosed and declared by him to belong to deposed President Ferdinand E. Marcos [—] to the Government of the Republic of the Philippines[;] his full, complete and truthful disclosures[;] and his commitment to pay a sum of money as determined by the Philippine Government." 56 Moreover, the grant of criminal immunity to the Camposes and the Benedictos was limited to acts and omissions prior to February 25, 1996. At the time such immunity was granted, no criminal cases have yet been filed against them before the competent court. Validity of the PCGG-Marcos Compromise Agreements Going now to the subject General and Supplemental Agreements between the PCGG and the Marcos heirs, a cursory perusal thereof reveals serious legal flaws. First, the Agreements do not conform to the above requirements of EO Nos. 14 and 14-A. We believe that criminal immunity under Section 5 cannot be granted to the Marcoses, who are the principal defendants in the spate of ill-gotten wealth cases now pending before the Sandiganbayan. As stated earlier, the provision is applicable mainly to witnesses who provide information or testify against a respondent, defendant or accused in an ill-gotten wealth case. While the General Agreement states that the Marcoses "shall provide the [government] assistance by way of testimony or deposition on any information [they] may have that could shed light on the cases being pursued by the [government] against other parties," 57 the clause does not fully comply with the law. Its inclusion in the Agreement may have been only an afterthought, conceived in pro forma compliance with Section 5 of EO No. 14, as amended. There is no indication whatsoever that any of the Marcos heirs has indeed provided vital information against any respondent or defendant as to the manner in which the latter may have unlawfully acquired public property. Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt from all forms of taxes the properties to be retained by the Marcos heirs. This is a clear violation of the Construction. The power to tax and to grant tax exemptions is vested in the Congress and, to a certain extent, in the local legislative bodies. 58 Section 28 (4), Article VI of the Constitution, specifically provides: "No law granting any tax exemption shall be passed without the concurrence of a majority of all the Member of the Congress." The PCGG has absolutely no power to grant tax exemptions, even under the cover of its authority to compromise ill-gotten wealth cases. Even granting that Congress enacts a law exempting the Marcoses form paying taxes on their properties, such law will definitely not pass the test of the equal protection clause under the Bill of Rights. Any special grant of tax exemption in favor only of the Marcos heirs will constitute class legislation. It will also violate the constitutional rule that "taxation shall be uniform and equitable." 59 Neither can the stipulation be construed to fall within the power of the commissioner of internal revenue to compromise taxes. Such authority may be exercised only when (1) there is reasonable doubt as to the validity of the claim against the taxpayer, and (2) the taxpayer's financial position demonstrates a clear inability to pay. 60Definitely, neither requisite is present in the case of the Marcoses, because under the Agreement they are effectively conceding the validity of the claims against their properties, part of which they will be allowed to retain. Nor can the PCGG grant of tax exemption fall within the power of the commissioner to abate or cancel a tax liability. This power can be exercised only when (1) the tax appears to be unjustly or excessively assessed, or (2) the administration and collection costs involved do not justify the collection of the tax due. 61 In this instance, the cancellation of tax liability is done even before the determination of the amount due. In any event, criminal violations of the Tax Code, for which legal actions have been filed in court or in which fraud is involved, cannot be compromised. 62 Third, the government binds itself to cause the dismissal of all cases against the Marcos heirs, pending before the Sandiganbayan and other court. 63 This is a direct encroachment on judicial powers, particularly in regard to criminal jurisdiction. Wellsettled is the doctrine that once a case has been filed before a court of competent jurisdiction, the matter of its dismissal or pursuance lies within the full discretion and control of the judge. In a criminal case, the manner in which the prosecution is handled, including the matter of whom to present as witnesses, may lie within the sound discretion of the government prosecution; 64 but the court decides, based on the evidence proffered, in what manner it will dispose of the case. Jurisdiction, once acquired by the trial court, is not lost despite a resolution, even by the justice secretary, to withdraw the information or to dismiss the complaint. 65 The

prosecution's motion to withdraw or to dismiss is not the least binding upon the court. On the contrary, decisional rules require the trial court to make its own evaluation of the merit of the case, because granting such motion is equivalent to effecting a disposition of the case itself. 66 Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot guarantee the dismissal of all such criminal cases against the Marcoses pending in the courts, for said dismissal is not within its sole power and discretion. Fourth, the government also waives all claims and counterclaims, "whether past, present, or future, matured or inchoate," against the Marcoses. 67 Again, this illencompassing stipulation is contrary to law. Under the Civil Code, an action for future fraud may not be waived. 68 The stipulation in the Agreement does not specify the exact scope of future claims against the Marcoses that the government thereby relinquishes. Such vague and broad statement may well be interpreted to include all future illegal acts of any of the Marcos heirs, practically giving them a license to perpetrate fraud against the government without any liability at all. This is a palpable violation of the due process and equal protection guarantees of the Constitution. It effectively ensconces the Marcoses beyond the reach of the law. It also sets a dangerous precedent for public accountability. It is a virtual warrant for public officials to amass public funds illegally, since there is an open option to compromise their liability in exchange for only a portion of their ill-gotten wealth. Fifth, the Agreements do not provide for a definite or determinable period within which the parties shall fulfill their respective prestations. It may take a lifetime before the Marcoses submit an inventory of their total assets. Sixth, the Agreements do not state with specificity the standards for determining which assets shall be forfeited by the government and which shall be retained by the Marcoses. While the Supplemental Agreement provides that the Marcoses shall be entitled to 25 per cent of the $356 million Swiss deposits (less government recovery expenses), such sharing arrangement pertains only to the said deposits. No similar splitting scheme is defined with respect to the other properties. Neither is there, anywhere in the Agreements, a statement of the basis for the 25-75 percent sharing ratio. Public officers entering into an arrangement appearing to be manifestly and grossly disadvantageous to the government, in violation of the Ati-Graft and Corruption Practice Act, 69 invite their indictment for corruption under the said law. Finally, the absence of then President Ramos' approval of the principal Agreement, an express condition therein, renders the compromise incomplete and unenforceable. Nevertheless, as detailed above, even if such approval were obtained, the Agreements would still not be valid. From the foregoing disquisition, it is crystal clear to the Court that the General and Supplemental Agreements, both dated December 28, 1993, which the PCGG entered into with the Marcos heirs, are violative of the Constitution and the laws aforementioned. WHEREFORE, the petition is GRANTED. The General and Supplemental Agreement dated December 28, 1993, which PCGG and the Marcos heirs entered into are hereby declared NULL AND VOID for being contrary to law and the Constitution. Respondent PCGG, its officers and all government functionaries and officials who are or may be directly ot indirectly involved in the recovery of the alleged ill-gotten wealth of the Marcoses and their associates are DIRECTED to disclose to the public the terms of any proposed compromise settlment, as well as the final agreement, relating to such alleged ill-gotten wealth, in accordance with the discussions embodied in this Decision. No pronouncement as to cost. SO ORDERED. Davide, Jr., C.J., Melo and Quisumbing, JJ., concur. Vitug, J., Please see separate opinion.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 170516

July 16, 2008

AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN"), PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA KANAYUNAN ("PKSK"), ALLIANCE OF PROGRESSIVE LABOR ("APL"), VICENTE A. FABE, ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX CRUZ-ANGELES, CONG. LORENZO R. TANADA III, CONG. MARIO JOYO AGUJA, CONG. LORETA ANN P. ROSALES, CONG. ANA THERESIA HONTIVEROSBARAQUEL, AND CONG. EMMANUEL JOEL J. VILLANUEVA, Petitioners, vs. THOMAS G. AQUINO, in his capacity as Undersecretary of the Department of Trade and Industry (DTI) and Chairman and Chief Delegate of the Philippine Coordinating Committee (PCC) for the Japan-Philippines Economic Partnership Agreement, EDSEL T. CUSTODIO, in his capacity as Undersecretary of the Department of Foreign Affairs (DFA) and Co-Chair of the PCC for the JPEPA, EDGARDO ABON, in his capacity as Chairman of the Tariff Commission and lead negotiator for Competition Policy and Emergency Measures of the JPEPA, MARGARITA SONGCO, in her capacity as Assistant Director-General of the National Economic Development Authority (NEDA) and lead negotiator for Trade in Services and Cooperation of the JPEPA, MALOU MONTERO, in her capacity as Foreign Service Officer I, Office of the Undersecretary for International Economic Relations of the DFA and lead negotiator for the General and Final Provisions of the JPEPA, ERLINDA ARCELLANA, in her capacity as Director of the Board of Investments and lead negotiator for Trade in Goods (General Rules) of the JPEPA, RAQUEL ECHAGUE, in her capacity as lead negotiator for Rules of Origin of the JPEPA, GALLANT SORIANO, in his official capacity as Deputy Commissioner of the Bureau of Customs and lead negotiator for Customs Procedures and Paperless Trading of the JPEPA, MA. LUISA GIGETTE IMPERIAL, in her capacity as Director of the Bureau of Local Employment of the Department of Labor and Employment (DOLE) and lead negotiator for Movement of Natural Persons of the JPEPA, PASCUAL DE GUZMAN, in his capacity as Director of the Board of Investments and lead negotiator for Investment of the JPEPA, JESUS MOTOOMULL, in his capacity as Director for the Bureau of Product Standards of the DTI and lead negotiator for Mutual Recognition of the JPEPA, LOUIE CALVARIO, in his capacity as lead negotiator for Intellectual Property of the JPEPA, ELMER H. DORADO, in his capacity as Officer-in-Charge of the Government Procurement Policy Board Technical Support Office, the government agency that is leading the negotiations on Government Procurement of the JPEPA, RICARDO V. PARAS, in his capacity as Chief State Counsel of the Department of Justice (DOJ) and lead negotiator for Dispute Avoidance and Settlement of the JPEPA, ADONIS SULIT, in his capacity as lead negotiator for the General and Final Provisions of the JPEPA, EDUARDO R. ERMITA, in his capacity as Executive Secretary, and ALBERTO ROMULO, in his capacity as Secretary of the DFA,* Respondents.

DECISION CARPIO MORALES, J.: Petitioners – non-government organizations, Congresspersons, citizens and taxpayers – seek via the present petition for mandamus and prohibition to obtain from respondents the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto. Petitioners Congressmen Lorenzo R. Tañada III and Mario Joyo Aguja filed on January 25, 2005 House Resolution No. 551 calling for an inquiry into the bilateral trade agreements then being negotiated by the Philippine government, particularly the JPEPA. The Resolution became the basis of an inquiry subsequently conducted by the House Special Committee on Globalization (the House Committee) into the negotiations of the JPEPA. In the course of its inquiry, the House Committee requested herein respondent Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating Committee created under Executive Order No. 213 ("Creation of A Philippine Coordinating Committee to Study the Feasibility of the Japan-Philippines Economic Partnership Agreement")1 to study and negotiate the proposed JPEPA, and to furnish the Committee with a copy of the latest draft of the JPEPA. Usec. Aquino did not heed the request, however. Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of November 2, 2005, replied that the Congressman shall be provided with a copy thereof "once the negotiations are completed and as soon as a thorough legal review of the proposed agreement has been conducted." In a separate move, the House Committee, through Congressman Herminio G. Teves, requested Executive Secretary Eduardo Ermita to furnish it with "all documents on the subject including the latest draft of the proposed agreement, the requests and offers etc."2 Acting on the request, Secretary Ermita, by letter of June 23, 2005, wrote Congressman Teves as follows: In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] explains that the Committee’s request to be furnished all documents on the JPEPA may be difficult to accomplish at this time, since the proposed Agreement has

been a work in progress for about three years. A copy of the draft JPEPA will however be forwarded to the Committee as soon as the text thereof is settled and complete. (Emphasis supplied) Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of the JPEPA. Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does not have a copy of the documents being requested, albeit he was certain that Usec. Aquino would provide the Congressman with a copy "once the negotiation is completed." And by letter of July 18, 2005, NEDA Assistant Director-General Margarita R. Songco informed the Congressman that his request addressed to Director-General Neri had been forwarded to Usec. Aquino who would be "in the best position to respond" to the request. In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a subpoena for the most recent draft of the JPEPA, but the same was not pursued because by Committee Chairman Congressman Teves’ information, then House Speaker Jose de Venecia had requested him to hold in abeyance the issuance of the subpoena until the President gives her consent to the disclosure of the documents.3 Amid speculations that the JPEPA might be signed by the Philippine government within December 2005, the present petition was filed on December 9, 2005.4 The agreement was to be later signed on September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland, following which the President endorsed it to the Senate for its concurrence pursuant to Article VII, Section 21 of the Constitution. To date, the JPEPA is still being deliberated upon by the Senate. The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with another country in the event the Senate grants its consent to it, covers a broad range of topics which respondents enumerate as follows: trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, intellectual property rights, government procurement, movement of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business environment, and general and final provisions.5 While the final text of the JPEPA has now been made accessible to the public since September 11, 2006,6respondents do not dispute that, at the time the petition was filed up to the filing of petitioners’ Reply – when the JPEPA was still being negotiated – the initial drafts thereof were kept from public view. Before delving on the substantive grounds relied upon by petitioners in support of the petition, the Court finds it necessary to first resolve some material procedural issues. Standing For a petition for mandamus such as the one at bar to be given due course, it must be instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right.7 Respondents deny that petitioners have such standing to sue. "[I]n the interest of a speedy and definitive resolution of the substantive issues raised," however, respondents consider it sufficient to cite a portion of the ruling in Pimentel v. Office of Executive Secretary8 which emphasizes the need for a "personal stake in the outcome of the controversy" on questions of standing. In a petition anchored upon the right of the people to information on matters of public concern, which is a public right by its very nature, petitioners need not show that they have any legal or special interest in the result, it being sufficient to show that they are citizens and, therefore, part of the general public which possesses the right.9 As the present petition is anchored on the right to information and petitioners are all suing in their capacity as citizens and groups of citizens including petitioners-members of the House of Representatives who additionally are suing in their capacity as such, the standing of petitioners to file the present suit is grounded in jurisprudence. Mootness Considering, however, that "[t]he principal relief petitioners are praying for is the disclosure of the contents of the JPEPA prior to its finalization between the two States parties,"10 public disclosure of the text of the JPEPA after its signing by the President,

during the pendency of the present petition, has been largely rendered moot and academic. With the Senate deliberations on the JPEPA still pending, the agreement as it now stands cannot yet be considered as final and binding between the two States. Article 164 of the JPEPA itself provides that the agreement does not take effect immediately upon the signing thereof. For it must still go through the procedures required by the laws of each country for its entry into force, viz: Article Entry into Force

164

This Agreement shall enter into force on the thirtieth day after the date on which the Governments of the Parties exchange diplomatic notes informing each other that their respective legal procedures necessary for entry into force of this Agreement have been completed. It shall remain in force unless terminated as provided for in Article 165.11 (Emphasis supplied) President Arroyo’s endorsement of the JPEPA to the Senate for concurrence is part of the legal procedures which must be met prior to the agreement’s entry into force. The text of the JPEPA having then been made accessible to the public, the petition has become moot and academic to the extent that it seeks the disclosure of the "full text" thereof. The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of the JPEPA, but also the Philippine and Japanese offers in the course of the negotiations.12 A discussion of the substantive issues, insofar as they impinge on petitioners’ demand for access to the Philippine and Japanese offers, is thus in order. Grounds relied upon by petitioners Petitioners assert, first, that the refusal of the government to disclose the documents bearing on the JPEPA negotiations violates their right to information on matters of public concern13 and contravenes other constitutional provisions on transparency, such as that on the policy of full public disclosure of all transactions involving public interest.14 Second, they contend that non-disclosure of the same documents undermines their right to effective and reasonable participation in all levels of social, political, and economic decision-making.15 Lastly, they proffer that divulging the contents of the JPEPA only after the agreement has been concluded will effectively make the Senate into a mere rubber stamp of the Executive, in violation of the principle of separation of powers. Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the JPEPA are, except for the last, the same as those cited for the disclosure of the Philippine and Japanese offers. The first two grounds relied upon by petitioners which bear on the merits of respondents’ claim of privilege shall be discussed. The last, being purely speculatory given that the Senate is still deliberating on the JPEPA, shall not. The JPEPA is a matter of public concern To be covered by the right to information, the information sought must meet the threshold requirement that it be a matter of public concern. Apropos is the teaching of Legaspi v. Civil Service Commission: In determining whether or not a particular information is of public concern there is no rigid test which can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.16(Underscoring supplied)

From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure. Respondents’ claim of privilege It is well-established in jurisprudence that neither the right to information nor the policy of full public disclosure is absolute, there being matters which, albeit of public concern or public interest, are recognized as privileged in nature. The types of information which may be considered privileged have been elucidated in Almonte v. Vasquez,17Chavez v. PCGG,18 Chavez v. Public Estate’s Authority,19 and most recently in Senate v. Ermita20 where the Court reaffirmed the validity of the doctrine of executive privilege in this jurisdiction and dwelt on its scope. Whether a claim of executive privilege is valid depends on the ground invoked to justify it and the context in which it is made.21 In the present case, the ground for respondents’ claim of privilege is set forth in their Comment, viz: x x x The categories of information that may be considered privileged includes matters of diplomatic character and under negotiation and review. In this case, the privileged character of the diplomatic negotiations has been categorically invoked and clearly explained by respondents particularly respondent DTI Senior Undersecretary. The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal review by the parties fall under the exceptions to the right of access to information on matters of public concern and policy of public disclosure. They come within the coverage of executive privilege. At the time when the Committee was requesting for copies of such documents, the negotiations were ongoing as they are still now and the text of the proposed JPEPA is still uncertain and subject to change. Considering the status and nature of such documents then and now, these are evidently covered by executive privilege consistent with existing legal provisions and settled jurisprudence. Practical and strategic considerations likewise counsel against the disclosure of the "rolling texts" which may undergo radical change or portions of which may be totally abandoned. Furthermore, the negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as judicial deliberations and working drafts of opinions are accorded strict confidentiality.22 (Emphasis and underscoring supplied) The ground relied upon by respondents is thus not simply that the information sought involves a diplomatic matter, but that it pertains to diplomatic negotiations then in progress. Privileged character of diplomatic negotiations The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that "information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest."23 Even earlier, the same privilege was upheld in People’s Movement for Press Freedom (PMPF) v. Manglapus24 wherein the Court discussed the reasons for the privilege in more precise terms. In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s representatives on the state of the then on-going negotiations of the RPUS Military Bases Agreement.25 The Court denied the petition, stressing that "secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information." The Resolution went on to state, thus: The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature. Although much has been said about "open" and "secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson:

"A complicated negotiation . . . cannot be carried through without many, many private talks and discussion, man to man; many tentative suggestions and proposals. Delegates from other countries come and tell you in confidence of their troubles at home and of their differences with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances. . . If these reports . . . should become public . . . who would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284.)."

Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher national goals for the sake of securing less critical ones. Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status.

xxxx There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer, "It can be said that there is no more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we must have "open covenants, openly arrived at." He quickly abandoned his thought. No one who has studied the question believes that such a method of publicity is possible. In the moment that negotiations are started, pressure groups attempt to "muscle in." An ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides would quickly lead to widespread propaganda to block the negotiations. After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion before it is approved. (The New American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied) Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp.26 that the President is the sole organ of the nation in its negotiations with foreign countries, viz: "x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring in the original) Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential – since there should be "ample opportunity for discussion before [a treaty] is approved" – the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that "historic confidentiality"27 would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest. Apropos are the following observations of Benjamin S. Duval, Jr.: x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity leads to "grandstanding," tends to freeze negotiating positions, and inhibits the give-and-take essential to successful negotiation. As Sissela Bok points out, if "negotiators have more to gain from being approved by their own sides than by making a reasoned agreement with competitors or adversaries, then they are inclined to 'play to the gallery . . .'' In fact, the public reaction may leave them little option. It would be a brave, or foolish, Arab leader who expressed publicly a willingness for peace with Israel that did not involve the return of the entire West Bank, or Israeli leader who stated publicly a willingness to remove Israel's existing settlements from Judea and Samaria in return for peace.28 (Emphasis supplied)

Whether petitioners have established the presence of such a public interest shall be discussed later. For now, the Court shall first pass upon the arguments raised by petitioners against the application of PMPF v. Manglapus to the present case. Arguments proffered by petitioners against the application of PMPF v. Manglapus Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there being substantial factual distinctions between the two. To petitioners, the first and most fundamental distinction lies in the nature of the treaty involved. They stress that PMPF v. Manglapus involved the Military Bases Agreement which necessarily pertained to matters affecting national security; whereas the present case involves an economic treaty that seeks to regulate trade and commerce between the Philippines and Japan, matters which, unlike those covered by the Military Bases Agreement, are not so vital to national security to disallow their disclosure. Petitioners’ argument betrays a faulty assumption that information, to be considered privileged, must involve national security. The recognition in Senate v. Ermita29 that executive privilege has encompassed claims of varying kinds, such that it may even be more accurate to speak of "executive privileges," cautions against such generalization. While there certainly are privileges grounded on the necessity of safeguarding national security such as those involving military secrets, not all are founded thereon. One example is the "informer’s privilege," or the privilege of the Government not to disclose the identity of a person or persons who furnish information of violations of law to officers charged with the enforcement of that law.30 The suspect involved need not be so notorious as to be a threat to national security for this privilege to apply in any given instance. Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in which case not only would this be contrary to long-standing practice. It would also be highly prejudicial to law enforcement efforts in general. Also illustrative is the privilege accorded to presidential communications, which are presumed privileged without distinguishing between those which involve matters of national security and those which do not, the rationale for the privilege being that x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. x x x31 (Emphasis supplied) In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated upon, so presidential communications are privileged whether they involve matters of national security. It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one significant qualification being that "the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing." 32 This qualification applies whether the privilege is being invoked in the context of a judicial trial or a congressional investigation conducted in aid of legislation.33 Closely related to the "presidential communications" privilege is the deliberative process privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co,34 deliberative process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Notably, the privileged status of such documents rests, not on the need to protect national security but, on the "obvious realization that officials will not communicate candidly

among themselves if each remark is a potential item of discovery and front page news," the objective of the privilege being to enhance the quality of agency decisionshttp://web2.westlaw.com/find/default.wl?rs=WLW7.07&serialnum=1975129 772&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=708&utid=%7b532A6DBF-9B4C4A5A-8F16C20D9BAA36C4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=WLIGeneralSubscription. 3

In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding information, namely, Exemption 5 of the Freedom of Information Act (FOIA).39 In order to qualify for protection under Exemption 5, a document must satisfy two conditions: (1) it must be either inter-agency or intra-agency in nature, and (2) it must be both pre-decisional and part of the agency's deliberative or decision-making process.40

5

The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic negotiations, deliberative process, and presidential communications is similar, if not identical. The earlier discussion on PMPF v. Manglapus36 shows that the privilege for diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks, through the same means, to protect the independence in decision-making of the President, particularly in its capacity as "the sole organ of the nation in its external relations, and its sole representative with foreign nations." And, as with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises, not on account of the content of the information per se, but because the information is part of a process of deliberation which, in pursuit of the public interest, must be presumed confidential. The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the Treasury37enlightens on the close relation between diplomatic negotiations and deliberative process privileges. The plaintiffs in that case sought access to notes taken by a member of the U.S. negotiating team during the U.S.French tax treatynegotiations. Among the points noted therein were the issues to be discussed, positions which the French and U.S. teams took on some points, the draft language agreed on, and articles which needed to be amended. Upholding the confidentiality of those notes, Judge Green ruled, thus: Negotiations between two countries to draft a treaty represent a true example of a deliberative process. Much give-and-take must occur for the countries to reach an accord. A description of the negotiations at any one point would not provide an onlooker a summary of the discussions which could later be relied on as law. It would not be "working law" as the points discussed and positions agreed on would be subject to change at any date until the treaty was signed by the President and ratified by the Senate. The policies behind the deliberative process privilege support non-disclosure. Much harm could accrue to the negotiations process if these notes were revealed. Exposure of the pre-agreement positions of the French negotiators might well offend foreign governments and would lead to less candor by the U. S. in recording the events of the negotiations process. As several months pass in between negotiations, this lack of record could hinder readily the U. S. negotiating team. Further disclosure would reveal prematurely adopted policies. If these policies should be changed, public confusion would result easily. Finally, releasing these snapshot views of the negotiations would be comparable to releasing drafts of the treaty, particularly when the notes state the tentative provisions and language agreed on. As drafts of regulations typically are protected by the deliberative process privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be accorded the same protection. (Emphasis and underscoring supplied) Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process. The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v. Office of U.S. Trade Representative38 – where the plaintiffs sought information relating to the just-completed negotiation of a United States-Chile Free Trade Agreement – the same district court, this time under Judge Friedman, consciously refrained from applying the doctrine in Fulbright and ordered the disclosure of the information being sought. Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in Fulbright, a discussion of why the district court did not apply the same would help illumine this Court’s own reasons for deciding the present case along the lines of Fulbright.

Judge Friedman, in CIEL, himself cognizant of a "superficial similarity of context" between the two cases, based his decision on what he perceived to be a significant distinction: he found the negotiator’s notes that were sought in Fulbright to be "clearly internal," whereas the documents being sought in CIEL were those produced by or exchanged with an outside party, i.e. Chile. The documents subject of Fulbright being clearly internal in character, the question of disclosure therein turned not on the threshold requirement of Exemption 5 that the document be inter-agency, but on whether the documents were part of the agency's pre-decisional deliberative process. On this basis, Judge Friedman found that "Judge Green's discussion [in Fulbright] of the harm that could result from disclosure therefore is irrelevant, since the documents at issue [in CIEL] are not inter-agency, and the Court does not reach the question of deliberative process." (Emphasis supplied) In fine, Fulbright was not overturned. The court in CIEL merely found the same to be irrelevant in light of its distinct factual setting. Whether this conclusion was valid – a question on which this Court would not pass – the ruling in Fulbright that "[n]egotiations between two countries to draft a treaty represent a true example of a deliberative process" was left standing, since the CIEL court explicitly stated that it did not reach the question of deliberative process. Going back to the present case, the Court recognizes that the information sought by petitioners includes documents produced and communicated by a party external to the Philippine government, namely, the Japanese representatives in the JPEPA negotiations, and to that extent this case is closer to the factual circumstances of CIELthan those of Fulbright. Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle articulated in Fulbrightthat the public policy underlying the deliberative process privilege requires that diplomatic negotiations should also be accorded privileged status, even if the documents subject of the present case cannot be described as purely internal in character. It need not be stressed that in CIEL, the court ordered the disclosure of information based on its finding that the first requirement of FOIA Exemption 5 – that the documents be inter-agency – was not met. In determining whether the government may validly refuse disclosure of the exchanges between the U.S. and Chile, it necessarily had to deal with this requirement, it being laid down by a statute binding on them. In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory requirement similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when assessing a claim of privilege for diplomatic negotiations, are more free to focus directly on the issue of whether the privilege being claimed is indeed supported by public policy, without having to consider – as the CIEL court did – if these negotiations fulfill a formal requirement of being "inter-agency." Important though that requirement may be in the context of domestic negotiations, it need not be accorded the same significance when dealing with international negotiations. There being a public policy supporting a privilege for diplomatic negotiations for the reasons explained above, the Court sees no reason to modify, much less abandon, the doctrine in PMPF v. Manglapus. A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from the present case is the fact that the petitioners therein consisted entirely of members of the mass media, while petitioners in the present case include members of the House of Representatives who invoke their right to information not just as citizens but as members of Congress. Petitioners thus conclude that the present case involves the right of members of Congress to demand information on negotiations of international trade agreements from the Executive branch, a matter which was not raised in PMPF v. Manglapus. While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass media, it would be incorrect to claim that the doctrine laid down therein has no

bearing on a controversy such as the present, where the demand for information has come from members of Congress, not only from private citizens.

negotiations is clearly among the recognized exceptions, for the footnote to the immediately quoted ruling cites PMPF v. Manglapus itself as an authority.

The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being claimed under different circumstances. The probability of the claim succeeding in the new context might differ, but to say that the privilege, as such, has no validity at all in that context is another matter altogether.

Whether there is sufficient public interest to overcome the claim of privilege

The Court’s statement in Senate v. Ermita that "presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations [state secrets privilege, informer’s privilege, and a generic privilege for internal deliberations], and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations,"41 implies that a privilege, once recognized, may be invoked under different procedural settings. That this principle holds true particularly with respect to diplomatic negotiations may be inferred from PMPF v. Manglapus itself, where the Court held that it is the President alone who negotiates treaties, and not even the Senate or the House of Representatives, unless asked, may intrude upon that process. Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens’ demands for information, but also in the context of legislative investigations. Hence, the recognition granted in PMPF v. Manglapus to the privileged character of diplomatic negotiations cannot be considered irrelevant in resolving the present case, the contextual differences between the two cases notwithstanding. As third and last point raised against the application of PMPF v. Manglapus in this case, petitioners proffer that "the socio-political and historical contexts of the two cases are worlds apart." They claim that the constitutional traditions and concepts prevailing at the time PMPF v. Manglapus came about, particularly the school of thought that the requirements of foreign policy and the ideals of transparency were incompatible with each other or the "incompatibility hypothesis," while valid when international relations were still governed by power, politics and wars, are no longer so in this age of international cooperation.42 Without delving into petitioners’ assertions respecting the "incompatibility hypothesis," the Court notes that the ruling in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as such than on a particular socio-political school of thought. If petitioners are suggesting that the nature of treaty negotiations have so changed that "[a]n ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides" no longer "lead[s] to widespread propaganda to block the negotiations," or that parties in treaty negotiations no longer expect their communications to be governed by historic confidentiality, the burden is on them to substantiate the same. This petitioners failed to discharge. Whether the privilege applies only at certain stages of the negotiation process Petitioners admit that "diplomatic negotiations on the JPEPA are entitled to a reasonable amount of confidentiality so as not to jeopardize the diplomatic process." They argue, however, that the same is privileged "only at certain stages of the negotiating process, after which such information must necessarily be revealed to the public."43 They add that the duty to disclose this information was vested in the government when the negotiations moved from the formulation and exploratory stage to the firming up of definite propositions or official recommendations, citing Chavez v. PCGG44 and Chavez v. PEA.45 The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both that case and Chavez v. PCGG with regard to the duty to disclose "definite propositions of the government" does not apply to diplomatic negotiations: We rule, therefore, that the constitutional right to information includes official information on on-going negotiationsbefore a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. x x x46 (Emphasis and underscoring supplied) It follows from this ruling that even definite propositions of the government may not be disclosed if they fall under "recognized exceptions." The privilege for diplomatic

It being established that diplomatic negotiations enjoy a presumptive privilege against disclosure, even against the demands of members of Congress for information, the Court shall now determine whether petitioners have shown the existence of a public interest sufficient to overcome the privilege in this instance. To clarify, there are at least two kinds of public interest that must be taken into account. One is the presumed public interest in favor of keeping the subject information confidential, which is the reason for the privilege in the first place, and the other is the public interest in favor of disclosure, the existence of which must be shown by the party asking for information. 47 The criteria to be employed in determining whether there is a sufficient public interest in favor of disclosure may be gathered from cases such as U.S. v. Nixon,48 Senate Select Committee on Presidential Campaign Activities v. Nixon,49 and In re Sealed Case.50 U.S. v. Nixon, which involved a claim of the presidential communications privilege against the subpoena duces tecum of a district court in a criminal case, emphasized the need to balance such claim of privilege against the constitutional duty of courts to ensure a fair administration of criminal justice. x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President’s acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases. (Emphasis, italics and underscoring supplied) Similarly, Senate Select Committee v. Nixon,51 which involved a claim of the presidential communications privilege against the subpoena duces tecum of a Senate committee, spoke of the need to balance such claim with the duty of Congress to perform its legislative functions. The staged decisional structure established in Nixon v. Sirica was designed to ensure that the President and those upon whom he directly relies in the performance of his duties could continue to work under a general assurance that their deliberations would remain confidential. So long as the presumption that the public interest favors confidentiality can be defeated only by a strong showing of need by another institution of government- a showing that the responsibilities of that institution cannot responsibly be fulfilled without access to records of the President's deliberations- we believed in Nixon v. Sirica, and continue to believe, that the effective functioning of the presidential office will not be impaired. x x x xxxx The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. x x x (Emphasis and underscoring supplied) In re Sealed Case52 involved a claim of the deliberative process and presidential communications privileges against a subpoena duces tecum of a grand jury. On the claim of deliberative process privilege, the court stated: The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a caseby-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests," taking into account factors such as "the relevance of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the role of the government," and the "possibility of future timidity by government employees. x x x (Emphasis, italics and underscoring supplied)

Petitioners have failed to present the strong and "sufficient showing of need" referred to in the immediately cited cases. The arguments they proffer to establish their entitlement to the subject documents fall short of this standard. Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA negotiation process effectively results in the bargaining away of their economic and property rights without their knowledge and participation, in violation of the due process clause of the Constitution. They claim, moreover, that it is essential for the people to have access to the initial offers exchanged during the negotiations since only through such disclosure can their constitutional right to effectively participate in decision-making be brought to life in the context of international trade agreements. Whether it can accurately be said that the Filipino people were not involved in the JPEPA negotiations is a question of fact which this Court need not resolve. Suffice it to state that respondents had presented documents purporting to show that public consultations were conducted on the JPEPA. Parenthetically, petitioners consider these "alleged consultations" as "woefully selective and inadequate."53 AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and Japanese representatives have not been disclosed to the public, the Court shall pass upon the issue of whether access to the documents bearing on them is, as petitioners claim, essential to their right to participate in decision-making. The case for petitioners has, of course, been immensely weakened by the disclosure of the full text of the JPEPA to the public since September 11, 2006, even as it is still being deliberated upon by the Senate and, therefore, not yet binding on the Philippines. Were the Senate to concur with the validity of the JPEPA at this moment, there has already been, in the words of PMPF v. Manglapus, "ample opportunity for discussion before [the treaty] is approved." The text of the JPEPA having been published, petitioners have failed to convince this Court that they will not be able to meaningfully exercise their right to participate in decision-making unless the initial offers are also published. It is of public knowledge that various non-government sectors and private citizens have already publicly expressed their views on the JPEPA, their comments not being limited to general observations thereon but on its specific provisions. Numerous articles and statements critical of the JPEPA have been posted on the Internet.54 Given these developments, there is no basis for petitioners’ claim that access to the Philippine and Japanese offers is essential to the exercise of their right to participate in decision-making. Petitioner-members of the House of Representatives additionally anchor their claim to have a right to the subject documents on the basis of Congress’ inherent power to regulate commerce, be it domestic or international. They allege that Congress cannot meaningfully exercise the power to regulate international trade agreements such as the JPEPA without being given copies of the initial offers exchanged during the negotiations thereof. In the same vein, they argue that the President cannot exclude Congress from the JPEPA negotiations since whatever power and authority the President has to negotiate international trade agreements is derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No. 1464.55 The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and international agreements, but the power to fix tariff rates, import and export quotas, and other taxes. Thus it provides: (2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.

By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country. In many ways, the President is the chief architect of the nation's foreign policy; his "dominance in the field of foreign relations is (then) conceded." Wielding vast powers and influence, his conduct in the external affairs of the nation, as Jefferson describes, is "executive altogether." As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President, subject only to the concurrence of at least two thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. x x x (Italics in the original; emphasis and underscoring supplied) The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary57 where the Court ruled: In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. x x x (Emphasis and underscoring supplied) While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the President only by delegation of that body, it has long been recognized that the power to enter into treaties is vested directly and exclusively in the President, subject only to the concurrence of at least two-thirds of all the Members of the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade agreements with foreign nations provided under P.D. 146458 may be interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis to hold the President or its representatives accountable to Congress for the conduct of treaty negotiations. This is not to say, of course, that the President’s power to enter into treaties is unlimited but for the requirement of Senate concurrence, since the President must still ensure that all treaties will substantively conform to all the relevant provisions of the Constitution. It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to the validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress as a whole that has been given the authority to concur as a means of checking the treaty-making power of the President, but only the Senate. Thus, as in the case of petitioners suing in their capacity as private citizens, petitionersmembers of the House of Representatives fail to present a "sufficient showing of need" that the information sought is critical to the performance of the functions of Congress, functions that do not include treaty-negotiation. Respondents’ alleged failure to timely claim executive privilege

As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII – the article on the Executive Department – which states: No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President, being the sole organ of the nation in its external relations, was echoed in BAYAN v. Executive Secretary56 where the Court held:

On respondents’ invocation of executive privilege, petitioners find the same defective, not having been done seasonably as it was raised only in their Comment to the present petition and not during the House Committee hearings. That respondents invoked the privilege for the first time only in their Comment to the present petition does not mean that the claim of privilege should not be credited. Petitioners’ position presupposes that an assertion of the privilege should have been

made during the House Committee investigations, failing which respondents are deemed to have waived it.

with foreign nations but does not have the power to negotiate international agreements directly."62

When the House Committee and petitioner-Congressman Aguja requested respondents for copies of the documents subject of this case, respondents replied that the negotiations were still on-going and that the draft of the JPEPA would be released once the text thereof is settled and complete. There was no intimation that the requested copies are confidential in nature by reason of public policy. The response may not thus be deemed a claim of privilege by the standards of Senate v. Ermita, which recognizes as claims of privilege only those which are accompanied by precise and certain reasons for preserving the confidentiality of the information being sought.

What is disputed is how this principle applies to the case at bar.

Respondents’ failure to claim the privilege during the House Committee hearings may not, however, be construed as a waiver thereof by the Executive branch. As the immediately preceding paragraph indicates, what respondents received from the House Committee and petitioner-Congressman Aguja were mere requests for information. And as priorly stated, the House Committee itself refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de Venecia’s alleged request to Committee Chairperson Congressman Teves to hold the same in abeyance. While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive officials – out of respect for their office – until resort to it becomes necessary, the fact remains that such requests are not a compulsory process. Being mere requests, they do not strictly call for an assertion of executive privilege. The privilege is an exemption to Congress’ power of inquiry.59 So long as Congress itself finds no cause to enforce such power, there is no strict necessity to assert the privilege. In this light, respondents’ failure to invoke the privilege during the House Committee investigations did not amount to a waiver thereof. The Court observes, however, that the claim of privilege appearing in respondents’ Comment to this petition fails to satisfy in full the requirement laid down in Senate v. Ermita that the claim should be invoked by the President or through the Executive Secretary "by order of the President."60 Respondents’ claim of privilege is being sustained, however, its flaw notwithstanding, because of circumstances peculiar to the case. The assertion of executive privilege by the Executive Secretary, who is one of the respondents herein, without him adding the phrase "by order of the President," shall be considered as partially complying with the requirement laid down in Senate v. Ermita. The requirement that the phrase "by order of the President" should accompany the Executive Secretary’s claim of privilege is a new rule laid down for the first time in Senate v. Ermita, which was not yet final and executory at the time respondents filed their Comment to the petition.61 A strict application of this requirement would thus be unwarranted in this case. Response to the Dissenting Opinion of the Chief Justice We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our people’s right to information against any abuse of executive privilege. It is a zeal that We fully share. The Court, however, in its endeavor to guard against the abuse of executive privilege, should be careful not to veer towards the opposite extreme, to the point that it would strike down as invalid even a legitimate exercise thereof. We respond only to the salient arguments of the Dissenting Opinion which have not yet been sufficiently addressed above. 1. After its historical discussion on the allocation of power over international trade agreements in the United States, the dissent concludes that "it will be turning somersaults with history to contend that the President is the sole organ for external relations" in that jurisdiction. With regard to this opinion, We make only the following observations: There is, at least, a core meaning of the phrase "sole organ of the nation in its external relations" which is not being disputed, namely, that the power to directly negotiate treaties and international agreements is vested by our Constitution only in the Executive. Thus, the dissent states that "Congress has the power to regulate commerce

The dissent opines that petitioner-members of the House of Representatives, by asking for the subject JPEPA documents, are not seeking to directly participate in the negotiations of the JPEPA, hence, they cannot be prevented from gaining access to these documents. On the other hand, We hold that this is one occasion where the following ruling in Agan v. PIATCO63 – and in other cases both before and since – should be applied: This Court has long and consistently adhered to the legal maxim that those that cannot be done directly cannot be done indirectly. To declare the PIATCO contracts valid despite the clear statutory prohibition against a direct government guarantee would not only make a mockery of what the BOT Law seeks to prevent -which is to expose the government to the risk of incurring a monetary obligation resulting from a contract of loan between the project proponent and its lenders and to which the Government is not a party to -- but would also render the BOT Law useless for what it seeks to achieve –- to make use of the resources of the private sector in the "financing, operation and maintenance of infrastructure and development projects" which are necessary for national growth and development but which the government, unfortunately, could ill-afford to finance at this point in time.64 Similarly, while herein petitioners-members of the House of Representatives may not have been aiming to participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny – even to the point of giving them access to the offers exchanged between the Japanese and Philippine delegations – would have made a mockery of what the Constitution sought to prevent and rendered it useless for what it sought to achieve when it vested the power of direct negotiation solely with the President. What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making power of the President, which our Constitution similarly defines, may be gathered from Hamilton’s explanation of why the U.S. Constitution excludes the House of Representatives from the treaty-making process: x x x The fluctuating, and taking its future increase into account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character, decision, secrecy and dispatch; are incompatible with a body so variable and so numerous. The very complication of the business by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the house of representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be source of so great inconvenience and expense, as alone ought to condemn the project.65 These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that of the U.S., does not even grant the Senate the power to advise the Executive in the making of treaties, but only vests in that body the power to concur in the validity of the treaty after negotiations have been concluded.66 Much less, therefore, should it be inferred that the House of Representatives has this power. Since allowing petitioner-members of the House of Representatives access to the subject JPEPA documents would set a precedent for future negotiations, leading to the contravention of the public interests articulated above which the Constitution sought to protect, the subject documents should not be disclosed. 2. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege over the subject JPEPA documents now that negotiations have been concluded, since their reasons for nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily apply only for as long as the negotiations were still pending; In their Comment, respondents contend that "the negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as judicial deliberations and working

drafts of opinions are accorded strict confidentiality." That respondents liken the documents involved in the JPEPA negotiations to judicial deliberations and working drafts of opinions evinces, by itself, that they were claiming confidentiality not only until, but even after, the conclusion of the negotiations. Judicial deliberations do not lose their confidential character once a decision has been promulgated by the courts. The same holds true with respect to working drafts of opinions, which are comparable to intra-agencyrecommendations. Such intra-agency recommendations are privileged even after the position under consideration by the agency has developed into a definite proposition, hence, the rule in this jurisdiction that agencies have the duty to disclose only definite propositions, and not the interagency and intra-agency communications during the stage when common assertions are still being formulated.67 3. The dissent claims that petitioner-members of the House of Representatives have sufficiently shown their need for the same documents to overcome the privilege. Again, We disagree. The House Committee that initiated the investigations on the JPEPA did not pursue its earlier intention to subpoena the documents. This strongly undermines the assertion that access to the same documents by the House Committee is critical to the performance of its legislative functions. If the documents were indeed critical, the House Committee should have, at the very least, issued a subpoena duces tecum or, like what the Senate did in Senate v. Ermita, filed the present petition as a legislative body, rather than leaving it to the discretion of individual Congressmen whether to pursue an action or not. Such acts would have served as strong indicia that Congress itself finds the subject information to be critical to its legislative functions. Further, given that respondents have claimed executive privilege, petitioner-members of the House of Representatives should have, at least, shown how its lack of access to the Philippine and Japanese offers would hinder the intelligent crafting of legislation. Mere assertion that the JPEPA covers a subject matter over which Congress has the power to legislate would not suffice. As Senate Select Committee v. Nixon68 held, the showing required to overcome the presumption favoring confidentiality turns, not only on the nature and appropriateness of the function in the performance of which the material was sought, but also the degree to which the material was necessary to its fulfillment. This petitioners failed to do. Furthermore, from the time the final text of the JPEPA including its annexes and attachments was published, petitioner-members of the House of Representatives have been free to use it for any legislative purpose they may see fit. Since such publication, petitioners’ need, if any, specifically for the Philippine and Japanese offers leading to the final version of the JPEPA, has become even less apparent. In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the dissent contends that the Executive has failed to show how disclosing them after the conclusion of negotiations would impair the performance of its functions. The contention, with due respect, misplaces the onus probandi. While, in keeping with the general presumption of transparency, the burden is initially on the Executive to provide precise and certain reasons for upholding its claim of privilege, once the Executive is able to show that the documents being sought are covered by a recognized privilege, the burden shifts to the party seeking information to overcome the privilege by a strong showing of need. When it was thus established that the JPEPA documents are covered by the privilege for diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose that their disclosure would impair the performance of executive functions. It was then incumbent on petitioner- requesting parties to show that they have a strong need for the information sufficient to overcome the privilege. They have not, however. 4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the privilege "by order of the President," the same may not be strictly applied to the privilege claim subject of this case. When the Court in Senate v. Ermita limited the power of invoking the privilege to the President alone, it was laying down a new rule for which there is no counterpart even in the United States from which the concept of executive privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v. Department of Justice,69 citing In re Sealed Case,70 "the issue of whether a President must personally invoke the [presidential communications] privilege remains an open question." U.S. v. Reynolds,71 on the other hand, held that "[t]here must be a formal claim of privilege,

lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." The rule was thus laid down by this Court, not in adherence to any established precedent, but with the aim of preventing the abuse of the privilege in light of its highly exceptional nature. The Court’s recognition that the Executive Secretary also bears the power to invoke the privilege, provided he does so "by order of the President," is meant to avoid laying down too rigid a rule, the Court being aware that it was laying down a new restriction on executive privilege. It is with the same spirit that the Court should not be overly strict with applying the same rule in this peculiar instance, where the claim of executive privilege occurred before the judgment in Senate v. Ermitabecame final. 5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent implies that the Court therein erred in citing US v. Curtiss Wright72 and the book entitled The New American Government and Its Work73since these authorities, so the dissent claims, may not be used to calibrate the importance of the right to information in the Philippine setting. The dissent argues that since Curtiss-Wright referred to a conflict between the executive and legislative branches of government, the factual setting thereof was different from that of PMPF v. Manglapus which involved a collision between governmental power over the conduct of foreign affairs and the citizen’s right to information. That the Court could freely cite Curtiss-Wright – a case that upholds the secrecy of diplomatic negotiations against congressional demands for information – in the course of laying down a ruling on the public right to information only serves to underscore the principle mentioned earlier that the privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being claimed under different circumstances. PMPF v. Manglapus indeed involved a demand for information from private citizens and not an executive-legislative conflict, but so did Chavez v. PEA74 which held that "the [public’s] right to information . . . does not extend to matters recognized as privileged information under the separation of powers." What counts as privileged information in an executive-legislative conflict is thus also recognized as such in cases involving the public’s right to information. Chavez v. PCGG75 also involved the public’s right to information, yet the Court recognized as a valid limitation to that right the same privileged information based on separation of powers – closed-door Cabinet meetings, executive sessions of either house of Congress, and the internal deliberations of the Supreme Court. These cases show that the Court has always regarded claims of privilege, whether in the context of an executive-legislative conflict or a citizen’s demand for information, as closely intertwined, such that the principles applicable to one are also applicable to the other. The reason is obvious. If the validity of claims of privilege were to be assessed by entirely different criteria in each context, this may give rise to the absurd result where Congress would be denied access to a particular information because of a claim of executive privilege, but the general public would have access to the same information, the claim of privilege notwithstanding. Absurdity would be the ultimate result if, for instance, the Court adopts the "clear and present danger" test for the assessment of claims of privilege against citizens’ demands for information. If executive information, when demanded by a citizen, is privileged only when there is a clear and present danger of a substantive evil that the State has a right to prevent, it would be very difficult for the Executive to establish the validity of its claim in each instance. In contrast, if the demand comes from Congress, the Executive merely has to show that the information is covered by a recognized privilege in order to shift the burden on Congress to present a strong showing of need. This would lead to a situation where it would be more difficult for Congress to access executive information than it would be for private citizens. We maintain then that when the Executive has already shown that an information is covered by executive privilege, the party demanding the information must present a "strong showing of need," whether that party is Congress or a private citizen.

The rule that the same "showing of need" test applies in both these contexts, however, should not be construed as a denial of the importance of analyzing the context in which an executive privilege controversy may happen to be placed. Rather, it affirms it, for it means that the specific need being shown by the party seeking information in every particular instance is highly significant in determining whether to uphold a claim of privilege. This "need" is, precisely, part of the context in light of which every claim of privilege should be assessed. Since, as demonstrated above, there are common principles that should be applied to executive privilege controversies across different contexts, the Court in PMPF v. Manglapus did not err when it cited the Curtiss-Wrightcase. The claim that the book cited in PMPF v. Manglapus entitled The New American Government and Its Work could not have taken into account the expanded statutory right to information in the FOIA assumes that the observations in that book in support of the confidentiality of treaty negotiations would be different had it been written after the FOIA. Such assumption is, with due respect, at best, speculative. As to the claim in the dissent that "[i]t is more doubtful if the same book be used to calibrate the importance of the right of access to information in the Philippine setting considering its elevation as a constitutional right," we submit that the elevation of such right as a constitutional right did not set it free from the legitimate restrictions of executive privilege which is itself constitutionally-based.76 Hence, the comments in that book which were cited in PMPF v. Manglapus remain valid doctrine. 6. The dissent further asserts that the Court has never used "need" as a test to uphold or allow inroads into rights guaranteed under the Constitution. With due respect, we assert otherwise. The Court has done so before, albeit without using the term "need." In executive privilege controversies, the requirement that parties present a "sufficient showing of need" only means, in substance, that they should show a public interest in favor of disclosure sufficient in degree to overcome the claim of privilege.77 Verily, the Court in such cases engages in a balancing of interests. Such a balancing of interests is certainly not new in constitutional adjudication involving fundamental rights. Secretary of Justice v. Lantion,78 which was cited in the dissent, applied just such a test. Given that the dissent has clarified that it does not seek to apply the "clear and present danger" test to the present controversy, but the balancing test, there seems to be no substantial dispute between the position laid down in this ponencia and that reflected in the dissent as to what test to apply. It would appear that the only disagreement is on the results of applying that test in this instance. The dissent, nonetheless, maintains that "it suffices that information is of public concern for it to be covered by the right, regardless of the public’s need for the information," and that the same would hold true even "if they simply want to know it because it interests them." As has been stated earlier, however, there is no dispute that the information subject of this case is a matter of public concern. The Court has earlier concluded that it is a matter of public concern, not on the basis of any specific need shown by petitioners, but from the very nature of the JPEPA as an international trade agreement. However, when the Executive has – as in this case – invoked the privilege, and it has been established that the subject information is indeed covered by the privilege being claimed, can a party overcome the same by merely asserting that the information being demanded is a matter of public concern, without any further showing required? Certainly not, for that would render the doctrine of executive privilege of no force and effect whatsoever as a limitation on the right to information, because then the sole test in such controversies would be whether an information is a matter of public concern.

the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decision-making.79 7. The dissent maintains that "[t]he treaty has thus entered the ultimate stage where the people can exercise their right to participate in the discussion whether the Senate should concur in its ratification or not." (Emphasis supplied) It adds that this right "will be diluted unless the people can have access to the subject JPEPA documents". What, to the dissent, is a dilution of the right to participate in decision-making is, to Us, simply a recognition of the qualified nature of the public’s right to information. It is beyond dispute that the right to information is not absolute and that the doctrine of executive privilege is a recognized limitation on that right. Moreover, contrary to the submission that the right to participate in decision-making would be diluted, We reiterate that our people have been exercising their right to participate in the discussion on the issue of the JPEPA, and they have been able to articulate their different opinions without need of access to the JPEPA negotiation documents. Thus, we hold that the balance in this case tilts in favor of executive privilege. 8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee case, and In re Sealed Case, are similarly applicable to the present controversy, the dissent cites the caveat in the Nixon case that the U.S. Court was there addressing only the President’s assertion of privilege in the context of a criminal trial, not a civil litigation nor a congressional demand for information. What this caveat means, however, is only that courts must be careful not to hastily apply the ruling therein to other contexts. It does not, however, absolutely mean that the principles applied in that case may never be applied in such contexts. Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive privilege in contexts other than a criminal trial, as in the case of Nixon v. Administrator of General Services80 – which involved former President Nixon’s invocation of executive privilege to challenge the constitutionality of the "Presidential Recordings and Materials Preservation Act"81 – and the above-mentioned In re Sealed Case which involved a claim of privilege against a subpoena duces tecum issued in a grand jury investigation. Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other cases already mentioned, We are merely affirming what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate Committee on Accountability82 – a case involving an executive-legislative conflict over executive privilege. That dissenting opinion stated that, while Nixon was not concerned with the balance between the President’s generalized interest in confidentiality and congressional demands for information, "[n]onetheless the [U.S.] Court laid down principles and procedures that can serve as torch lights to illumine us on the scope and use of Presidential communication privilege in the case at bar."83 While the Court was divided in Neri, this opinion of the Chief Justice was not among the points of disagreement, and We similarly hold now that the Nixon case is a useful guide in the proper resolution of the present controversy, notwithstanding the difference in context. Verily, while the Court should guard against the abuse of executive privilege, it should also give full recognition to the validity of the privilege whenever it is claimed within the proper bounds of executive power, as in this case. Otherwise, the Court would undermine its own credibility, for it would be perceived as no longer aiming to strike a balance, but seeking merely to water down executive privilege to the point of irrelevance. Conclusion

Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the documents of the JPEPA negotiations, the Philippine government runs the grave risk of betraying the trust reposed in it by the Japanese representatives, indeed, by the Japanese government itself. How would the Philippine government then explain itself when that happens? Surely, it cannot bear to say that it just had to release the information because certain persons simply wanted to know it "because it interests them." Thus, the Court holds that, in determining whether an information is covered by the right to information, a specific "showing of need" for such information is not a relevant consideration, but only whether the same is a matter of public concern. When, however, the government has claimed executive privilege, and it has established that

To recapitulate, petitioners’ demand to be furnished with a copy of the full text of the JPEPA has become moot and academic, it having been made accessible to the public since September 11, 2006. As for their demand for copies of the Philippine and Japanese offers submitted during the JPEPA negotiations, the same must be denied, respondents’ claim of executive privilege being valid. Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction and the reasons proffered by petitioners against the application of the ruling therein to the present case have not persuaded the Court. Moreover, petitioners – both

private citizens and members of the House of Representatives – have failed to present a "sufficient showing of need" to overcome the claim of privilege in this case. That the privilege was asserted for the first time in respondents’ Comment to the present petition, and not during the hearings of the House Special Committee on Globalization, is of no moment, since it cannot be interpreted as a waiver of the privilege on the part of the Executive branch. For reasons already explained, this Decision shall not be interpreted as departing from the ruling in Senate v. Ermitathat executive privilege should be invoked by the President or through the Executive Secretary "by order of the President." WHEREFORE, the petition is DISMISSED. SO ORDERED. CONCHITA Associate Justice

CARPIO

MORALES

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 95770 March 1, 1993 ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS. LEONARDO EBRALINAG, JUSTINIANA TANTOG, represented by her father AMOS TANTOG; JEMILOYAO & JOEL OYAO, represented by their parents MR. & MRS. ELIEZER OYAO; JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR. & MRS. GODOFREDO DIAMOS; SARA OSTIA & JONATHAN OSTIA, represented by their parents MR. & MRS. FAUTO OSTIA; IRVIN SEQUINO & RENAN SEQUINO, represented by their parents MR. & MRS. LYDIO SEQUINO; NAPTHALE TANACAO, represented by his parents MR. & MRS. MANUEL TANACAO; PRECILA PINO, represented by her parents MR. & MRS. FELIPE PINO; MARICRIS ALFAR, RUWINA ALFAR, represented by their parents MR. & MRS. HERMINIGILDO ALFAR; FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by their parents ABDON ALFAR; ALBERTO ALFAR & ARISTIO ALFAR, represented by their parents MR. & MRS. GENEROSO ALFAR; MARTINO VILLAR, represented by his parents MR. & MRS. GENARO VILLAR; PERGEBRIEL GUINITA & CHAREN GUINITA, represented by their parents MR. & MRS. CESAR GUINITA; ALVIN DOOP, represented by his parents MR. & MRS. LEONIDES DOOP; RHILYN LAUDE, represented by her parents MR. & MRS. RENE LAUDE; LEOREMINDA MONARES, represented by her parents, MR. & MRS. FLORENCIO MONARES; MERCY MONTECILLO, represented by her parents MR. & MRS. MANUEL MONTECILLO; ROBERTO TANGAHA, represented by his parent ILUMINADA TANGAHA; EVELYN, MARIA & FLORA TANGAHA, represented by their parents MR. & MRS. ALBERTO TANGAHA; MAXIMO EBRALINAG, represented by his parents, MR. & MRS. PAQUITO EBRALINAG; JUTA CUMON, GIDEON CUMON & JONATHAN CUMON, represented by their father RAFAEL CUMON; EVIE LUMAKANG & JUNAR LUMAKANG, represented by their parents MR. & MRS. LUMAKANG; EMILIO SARSOZO, PAZ AMOR SARSOZO & IGNA MARIE SARSOZO, represented by their parents MR. & MRS. VIRGILIO SARSOZO; MICHAEL JOSEPH & HENRY JOSEPH, represented by parent ANNIE JOSEPH; EMERSON TABLASON & MASTERLOU TABLASON, represented by their parent EMERLITO TABLASON, petitioners, vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, respondent. G.R. No. 95887 March 1, 1993 MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO; REDFORD ALSADO, JOEBERT ALSADO & RUDYARD ALSADO, represented by their parents MR. & MRS. ABELARDO ALSADO; NELIA ALSADO, REU ALSADO & LILIBETH ALSADO, represented by their parents MR. & MRS. ROLANDO ALSADO; SUZETTE NAPOLES, represented by her parents ISMAILITO NAPOLES & OPHELIA NAPOLES; JESICA CARMELOTES, represented by her parents MR. & MRS. SERGIO CARMELOTES; BABY JEAN MACAPAS, represented by her parents MR. & MRS. TORIBIO MACAPAS; GERALDINE ALSADO, represented by her parents MR. & MRS. JOEL ALSADO; RAQUEL DEMOTOR & LEAH DEMOTOR, represented by their parents MR. & MRS. LEONARDO DEMOTOR; JURELL VILLA & MELONEY VILLA, represented by their parents MR. & MRS. JOVENIANO VILLA; JONELL HOPE MAHINAY, MARY GRACE MAHINAY and MAGDALENE MAHINAY, represented by their parents MR. & MRS. FELIX MAHINAY; JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIFE ANTIOLA and ANECITA ANTIOLA; MARIA CONCEPCION CABUYAO, represented by her parents WENIFREDO CABUYAO and ESTRELLITA CABUYAO, NOEMI TURNO represented by her parents MANUEL TURNO and VEVENCIA TURNO; SOLOMON PALATULON, SALMERO PALATULON and ROSALINDA PALATULON, represented by their parents MARTILLANO PALATULON and CARMILA PALATULON, petitioners, vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and ANTONIO A. SANGUTAN, respondents. Felino M. Ganal for petitioners. The Solicitor General for respondents.

GRIÑO-AQUINO, J.: These two special civil actions for certiorari, Mandamus and Prohibition were consolidated because they raise essentially the same issue: whether school children who are members or a religious sect known as Jehovah's Witnesses may be expelled from school (both public and private), for refusing, on account of their religious beliefs, 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. In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu and Manuel F. Biongcog, Cebu District Supervisor," the petitioners are 43 high school and elementary school students in the towns of Daan Bantayan, Pinamungajan, Carcar, and Taburan Cebu province. All minors, they are assisted by their parents who belong to the religious group known as Jehovah's Witnesses which claims some 100,000 "baptized publishers" in the Philippines. In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu and Antonio A. Sangutan," the petitioners are 25 high school and grade school students enrolled in public schools in Asturias, Cebu, whose parents are Jehovah's Witnesses. Both petitions were prepared by the same counsel, Attorney Felino M. Ganal. All the petitioners in these two cases were expelled from their classes by the public school authorities in Cebu for refusing to salute the flag, sing the national anthem and recite the patriotic pledge as required by Republic Act No. 1265 of July 11, 1955, and by Department Order No. 8 dated July 21, 1955 of the Department of Education, Culture and Sports (DECS) making the flag ceremony compulsory in all educational institutions. Republic Act No. 1265 provides: Sec. 1. All educational institutions shall henceforth observe daily flag ceremony, which shall be simple and dignified and shall include the playing or singing of the Philippine National anthem.

Sec. 2. The Secretary of Education is hereby authorized and directed to issue or cause to be issued rules and regulations for the proper conduct of the flag ceremony herein provided. Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act and in accordance with rules and regulations issued by the Secretary of Education, after proper notice and hearing, shall subject the educational institution concerned and its head to public censure as an administrative punishment which shall be published at least once in a newspaper of general circulation. In case of failure to observe for the second time the flag-ceremony provided by this Act, the Secretary of Education, after proper notice and hearing, shall cause the cancellation of the recognition or permit of the private educational institution responsible for such failure. The implementing rules and regulations in Department Order No. 8 provide: RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL EDUCATIONAL INSTITUTIONS. 1. The Filipino Flag shall be displayed by all educational institutions, public and private, every school day throughout the year. It shall be raised at sunrise and lowered at sunset. The flag-staff must be straight, slightly and gently tapering at the end, and of such height as would give the Flag a commanding position in front of the building or within the compound. 2. Every public and private educational institution shall hold a flag-raising ceremony every morning except when it is raining, in which event the ceremony may be conducted indoors in the best way possible. A retreat shall be held in the afternoon of the same day. The flag-raising ceremony in the morning shall be conducted in the following manner: a. Pupils and teachers or students and faculty members who are in school and its premises shall assemble in formation facing the flag. At command, books shall be put away or held in the left hand and everybody shall come to attention. Those with hats shall uncover. No one shall enter or leave the school grounds during the ceremony. b. The assembly shall sing the Philippine National Anthem accompanied by the school band or without the accompaniment if it has none; or the anthem may be played by the school band alone. At the first note of the Anthem, the flag shall be raised briskly. While the flag is being raised, all persons present shall stand at attention and execute a salute. Boys and men with hats shall salute by placing the hat over the heart. Those without hat may stand with their arms and hands down and straight at the sides. Those in military or Boy Scout uniform shall give the salute prescribed by their regulations. The salute shall be started as the Flag rises, and completed upon last note of the anthem. c. Immediately following the singing of the Anthem, the assembly shall recite in unison the following patriotic pledge (English or vernacular version), which may bring the ceremony to a close. This is required of all public schools and of private schools which are intended for Filipino students or whose population is predominantly Filipino. English Version I love the Philippines. It is the land of my birth; It is the home of my people. It protects me and helps me to be, strong, happy and useful. In return, I will heed the counsel of my parents; I will obey the rules of my school; I will perform the duties of a patriotic, law-abiding citizen; I will serve my country unselfishly and faithfully; I will be a true, Filipino in thought, in word, in deed. xxx

xxx

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Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national anthem, and recite the patriotic pledge for they believe that those are "acts of worship" or "religious devotion" (p. 10, Rollo) which they "cannot conscientiously give . . . to anyone or anything except God" (p. 8, Rollo). They feel bound by the Bible's

command to "guard ourselves from idols — 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol representing the State (p. 10, Rollo). They think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on the State's power and invades the sphere of the intellect and spirit which the Constitution protect against official control (p. 10, Rollo). This is not the first time that the question, of whether the children of Jehovah's Witnesses may be expelled from school for disobedience of R.A. No. 1265 and Department Order No. 8, series of 1955, has been raised before this Court. The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106 Phil. 2 (1959) and Balbuna, et al. vs. Secretary of Education, 110 Phil. 150 (1960). This Court in the Gerona case upheld the expulsion of the students, thus: 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. Saluting the flag does not involve any religious ceremony. The flag salute is no more a religious ceremony than the taking of an oath of office by a public official or by a candidate for admission to the bar. In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education is not imposing a religion or religious belief or a religious test on said students. It is merely enforcing a non-discriminatory school regulation applicable to all alike whether Christian, Moslem, Protestant or Jehovah's Witness. The State is merely carrying out the duty imposed upon it by the Constitution which charges it with supervision over and regulation of all educational institutions, to establish and maintain a complete and adequate system of public education, and see to it that all schools aim to develop, among other things, civic conscience and teach the duties of citizenship. The children of Jehovah's Witnesses cannot be exempted from participation in the flag ceremony. They have no valid right to such exemption. Moreover, exemption to the requirement will disrupt school discipline and demoralize the rest of the school population which by far constitutes the great majority. The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent authority. (pp. 2-3).

95770) directing District Supervisors, High School Principals and Heads of Private Educational institutions as follows: 1. Reports reaching this Office disclose that there are a number of teachers, pupils, students, and school employees in public schools who refuse to salute the Philippine flag or participate in the daily flag ceremony because of some religious belief. 2. Such refusal not only undermines Republic Act No. 1265 and the DECS Department Order No. 8, Series of 1955 (Implementing Rules and Regulations) but also strikes at the heart of the DECS sustained effort to inculcate patriotism and nationalism. 3. Let it be stressed that any belief that considers the flag as an image is not in any manner whatever a justification for not saluting the Philippine flag or not participating in flag ceremony. Thus, the Supreme Court of the Philippine says: 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 freedom and liberty which it and the Constitution guarantee and protect. (Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 11.) 4. As regards the claim for freedom of belief, which an objectionist may advance, the Supreme Court asserts: But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way to the latter. (Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 11.) 5. Accordingly, teachers and school employees who choose not to participate in the daily flag ceremony or to obey the flag salute regulation spelled out in Department Order No. 8, Series of 1955, shall be considered removed from the service after due process. 6. In strong language about pupils and students who do the same the Supreme Court has this to say: If they choose not to obey the flag salute regulation, they merely lost the benefits of public education being maintained at the expense of their fellow Citizens, nothing more. According to a popular expression, they could take it or leave it! Having elected not to comply with the regulation about the flag salute they forfeited their right to attend public schools. (Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 15.)

Gerona was reiterated in Balbuna, as follows: The Secretary of Education was duly authorized by the Legislature thru Republic Act 1265 to promulgate said Department Order, and its provisions requiring the observance of the flag salute, not being a religious ceremony but an act and profession of love and allegiance and pledge of loyalty to the fatherland which the flag stands for, does not violate the constitutional provision on freedom of religion. (Balbuna, et al. vs. Secretary of Education, et al., 110 Phil. 150). Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28, Title VI, Chapter 9 of the Administrative Code of 1987 (Executive Order No. 292) which took effect on September 21, 1988 (one year after its publication in the Official Gazette, Vol. 63, No. 38 of September 21, 1987). Paragraph 5 of Section 28 gives legislative cachet to the ruling in Gerona, thus: 5. Any teacher or student or pupil who refuses to join or participate in the flag ceremony may be dismissed after due investigation. However, the petitioners herein have not raised in issue the constitutionality of the above provision of the new Administrative Code of 1987. They have targeted only Republic Act No. 1265 and the implementing orders of the DECS. In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils belonging to the Jehovah's Witnesses, and enrolled in various public and private schools, who refused to sing the Philippine national anthem, salute the Philippine flag and recite the patriotic pledge. Division Superintendent of Schools, Susana B. Cabahug of the Cebu Division of DECS, and Dr. Atty. Marcelo M. Bacalso, Assistant Division Superintendent, recalling this Court's decision in Gerona, issued Division Memorandum No. 108, dated November 17, 1989 (pp. 147-148, Rollo of G.R. No.

7. School administrators shall therefore submit to this Office a report on those who choose not to participate in flag ceremony or salute the Philippine flag. (pp. 147148, Rollo of G.R. No. 95770; Emphasis supplied). Cebu school officials resorted to a number of ways to persuade the children of Jehovah's Witnesses to obey the memorandum. In the Buenavista Elementary School, the children were asked to sign an Agreement (Kasabutan) in the Cebuano dialect promising to sing the national anthem, place their right hand on their breast until the end of the song and recite the pledge of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of G.R. No. 95887), but they refused to sign the "Kasabutan" (p. 20, Rolloof G.R. No. 95770). In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met with the Jehovah's Witnesses' parents, as disclosed in his letter of October 17, 1990, excerpts from which reveal the following: After two (2) fruitless confrontation meetings with the Jehovah's Witnesses' parents on October 2, 1990 and yesterday due to their firm stand not to salute the flag of the Republic of the Philippines during Flag Ceremony and other occasions, as mandated by law specifically Republic Act No. 1265, this Office hereby orders the dropping from the list in the School Register (BPS Form I) of all teachers, all Jehovah Witness pupils from Grade I up to Grade VI effective today. xxx xxx xxx This order is in compliance with Division Memorandum No. 108 s. 1989 dated November 17, 1989 by virtue of Department Order No. 8 s. 1955 dated July 21, 1955 in

accordance with Republic Act No. 1265 and Supreme Court Decision of a case "Genaro Gerona, et al., Petitioners and Appellants vs. The Honorable Secretary of Education, et al., Respondents and Appellees' dated August 12, 1959 against their favor. (p. 149, Rollo of G.R. No. 95770.) In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog, ordered the "dropping from the rolls" of students who "opted to follow their religious belief which is against the Flag Salute Law" on the theory that "they forfeited their right to attend public schools." (p. 47, Rollo of G.R. No. 95770.) 1st DAANBANTAYAN Daanbantayan, Cebu, July 24, 1990.

DISTRICT

Indorsement II

Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo Elementary School with the information that this office is sad to order the dropping of Jeremias Diamos and Jeaneth Diamos, Grades III and IV pupils respectively from the roll since they opted to follow their religious belief which is against the Flag Salute Law (R.A. 1265) and DECS Order No. 8, series of 1955, having elected not to comply with the regulation about the flag salute they forfeited their right to attend public schools (Gerona, et al. vs. Sec. of Education, et al., 106 Philippines 15). However, should they change their mind to respect and follow the Flag Salute Law they may be re-accepted. (p. 47, Rollo of G.R. No. 95770.) The expulsion as of October 23, 1990 of the 43 petitioning students of the Daanbantayan National High School, Agujo Elementary School, Calape Barangay National High School, Pinamungajan Provincial High School, Tabuelan Central School, Canasojan Elementary School, Liboron Elementary School, Tagaytay Primary School, San Juan Primary School and Northern Central Elementary School of San Fernando, Cebu, upon order of then Acting Division Superintendent Marcelo Bacalso, prompted some Jehovah's Witnesses in Cebu to appeal to the Secretary of Education Isidro Cariño but the latter did not answer their letter. (p. 21, Rollo.) The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled because Dr. Pablo Antopina, who succeeded Susana Cabahug as Division Superintendent of Schools, would not recall the expulsion orders of his predecessor. Instead, he verbally caused the expulsion of some more children of Jehovah's Witnesses. On October 31, 1990, the students and their parents filed these special civil actions for Mandamus, Certiorari and Prohibition alleging that the public respondents acted without or in excess of their jurisdiction and with grave abuse of discretion — (1) in ordering their expulsion without prior notice and hearing, hence, in violation of their right to due process, their right to free public education, and their right to freedom of speech, religion and worship (p. 23, Rollo). The petitioners pray that: c. Judgment be rendered: i. declaring null and void the expulsion or dropping from the rolls of herein petitioners from their respective schools; ii. prohibiting and enjoining respondent from further barring the petitioners from their classes or otherwise implementing the expulsion ordered on petitioners; and iii. compelling the respondent and all persons acting for him to admit and order the readmission of petitioners to their respective schools. (p. 41, Rollo.) and that pending the determination of the merits of these cases, a temporary restraining order be issued enjoining the respondents from enforcing the expulsion of the petitioners and to re-admit them to their respective classes. On November 27, 1990, the Court issued a temporary restraining order and a writ of preliminary mandatory injunction commanding the respondents to immediately readmit the petitioners to their respective classes until further orders from this Court (p. 57, Rollo). The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel F. Biongcog to be impleaded as respondents in these cases.

On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions (p. 98, Rollo) defending the expulsion orders issued by the public respondents on the grounds that: 1. Bizarre religious practices of the Jehovah's Witnesses produce rebellious and antisocial school children and consequently disloyal and mutant Filipino citizens. 2. There are no new and valid grounds to sustain the charges of the Jehovah's Witnesses that the DECS' rules and regulations on the flag salute ceremonies are violative of their freedom of religion and worship. 3. The flag salute is devoid of any religious significance; instead, it inculcates respect and love of country, for which the flag stands. 4. The State's compelling interests being pursued by the DECS' lawful regulations in question do not warrant exemption of the school children of the Jehovah's Witnesses from the flag salute ceremonies on the basis of their own self-perceived religious convictions. 5. The issue is not freedom of speech but enforcement of law and jurisprudence. 6. State's power to regulate repressive and unlawful religious practices justified, besides having scriptural basis. 7. The penalty of expulsion is legal and valid, more so with the enactment of Executive Order No. 292 (The Administrative Code of 1987). Our task here is extremely difficult, for the 30-year old decision of this court in Gerona upholding the flag salute law and approving the expulsion of students who refuse to obey it, is not lightly to be trifled with. It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by its in corporation in the Administrative Code of 1987, the present Court believes that the time has come to re-examine it. The idea that one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during a flag ceremony on pain of being dismissed from one's job or of being expelled from 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 (Sec. 5, Article III, 1987 Constitution; Article IV, Section 8, 1973 Constitution; Article III, Section 1[7], 1935 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 to his Creator (Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA 514, 530-531). The right to religious profession and worship 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 thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177). Petitioners stress, however, that while they do not take part in the compulsory flag ceremony, they do not engage in "external acts" or behavior that would offend their countrymen who believe in expressing their love of country through the observance of the flag ceremony. They quietly stand at attention during the flag ceremony to show their respect for the right of those who choose to participate in the solemn proceedings (Annex F, Rollo of G.R. No. 95887, p. 50 and Rollo of G.R. No. 95770, p. 48). Since they do not engage in disruptive behavior, there is no warrant for their expulsion. The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German vs. Barangan, 135 SCRA 514, 517) 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 a right (and duty) to prevent." Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified. The situation that the Court directly predicted in Gerona that:

The flag ceremony will become a thing of the past or perhaps conducted with very few participants, and the time will come when we would have citizens untaught and uninculcated in and not imbued with reverence for the flag and love of country, admiration for national heroes, and patriotism — a pathetic, even tragic situation, and all because a small portion of the school population imposed its will, demanded and was granted an exemption. (Gerona, p. 24.) has not come to pass. We are not persuaded that by exempting the Jehovah's Witnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a "small portion of the school population" will shake up our part of the globe and suddenly produce a nation "untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes" (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also receive training for a vocation of profession and be taught the virtues of "patriotism, respect for human rights, appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court had feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for dully constituted authorities. As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943): . . . To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. . . . When they [diversity] are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. Furthermore, let it be noted that coerced unity and loyalty even to the country, . . . — assuming that such unity and loyalty can be attained through coercion — is not a goal that is constitutionally obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.) Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to receive free education, for it is the duty of the State to "protect and promote the right of all citizens to quality education . . . and to make such education accessible to all (Sec. 1, Art. XIV). In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any labor group: . . . It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some "compelling state interests" intervenes. (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S. Ct. 1790.) 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 for their religious beliefs, however "bizarre" those beliefs may seem to others. Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such patriotic exercises. Paraphrasing the warning cited by this Court in Non vs. Dames II, 185 SCRA 523, 535, while the highest regard must be afforded their right to the free exercise of their religion, "this should not be taken to mean that school authorities are powerless to discipline them" if they should commit breaches of the peace by actions that offend the sensibilities, both religious and patriotic, of other persons. If they quietly stand at attention during the flag ceremony while their classmates and teachers salute the flag, sing the national anthem and recite the patriotic pledge, we do not see how such conduct may possibly disturb the peace, or pose "a grave and present danger of a serious evil to public safety, public morals, public health or any other legitimate public interest that the State has a right (and duty) to prevent (German vs. Barangan, 135 SCRA 514, 517).

Before we close this decision, it is appropriate to recall the Japanese occupation of our country in 1942-1944 when every Filipino, regardless of religious persuasion, in fear of the invader, saluted the Japanese flag and bowed before every Japanese soldier. Perhaps, if petitioners had lived through that dark period of our history, they would not quibble now about saluting the Philippine flag. For when liberation came in 1944 and our own flag was proudly hoisted aloft again, it was a beautiful sight to behold that made our hearts pound with pride and joy over the newly-regained freedom and sovereignty of our nation. Although the Court upholds in this decision the petitioners' right under our Constitution to refuse to salute the Philippine flag on account of their religious beliefs, we hope, nevertheless, that another foreign invasion of our country will not be necessary in order for our countrymen to appreciate and cherish the Philippine flag. WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion orders issued by the public respondents against the petitioners are hereby ANNULLED AND SET ASIDE. The temporary restraining order which was issued by this Court is hereby made permanent. SO ORDERED. Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur. Quiason, J., took no part. Gutierrez, Jr., J., is on leave.

EN BANC A.M. No. P-02-1651 August 4, 2003 ALEJANDRO ESTRADA, Complainant, vs. SOLEDAD S. ESCRITOR, Respondent. DECISION PUNO, J.: The case at bar takes us to a most difficult area of constitutional law where man stands accountable to an authority higher than the state. To be held on balance are the state’s interest and the respondent’s religious freedom. In this highly sensitive area of law, the task of balancing between authority and liberty is most delicate because to the person invoking religious freedom, the consequences of the case are not only temporal. The task is not made easier by the American origin of our religion clauses and the wealth of U.S. jurisprudence on these clauses for in the United States, there is probably no more intensely controverted area of constitutional interpretation than the religion clauses.1 The U.S. Supreme Court itself has acknowledged that in this constitutional area, there is "considerable internal inconsistency in the opinions of the Court."2 As stated by a professor of law, "(i)t is by now notorious that legal doctrines and judicial decisions in the area of religious freedom are in serious disarray. In perhaps no other area of constitutional law have confusion and inconsistency achieved such undisputed sovereignty."3 Nevertheless, this thicket is the only path to take to conquer the mountain of a legal problem the case at bar presents. Both the penetrating and panoramic view this climb would provide will largely chart the course of religious freedom in Philippine jurisdiction. That the religious freedom question arose in an administrative case involving only one person does not alter the paramount importance of the question for the "constitution commands the positive protection by government of religious freedom -not only for a minority, however small- not only for a majority, however large- but for each of us."4 I. Facts The facts of the case will determine whether respondent will prevail in her plea of religious freedom. It is necessary therefore to lay down the facts in detail, careful not to omit the essentials. In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, requesting for an investigation of rumors that respondent Soledad Escritor, court interpreter in said court, is living with a man not her husband. They allegedly have a child of eighteen to twenty years old. Estrada is not personally related either to Escritor or her partner and is a resident not of Las Piñas City but of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he believes that she is committing an immoral act that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it might appear that the court condones her act.5 Judge Caoibes referred the letter to Escritor who stated that "there is no truth as to the veracity of the allegation" and challenged Estrada to "appear in the open and prove his allegation in the proper forum."6 Judge Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she previously filed an administrative complaint against him and said case was still pending in the Office of the Court Administrator (OCA). Escritor’s motion was denied. The preliminary conference proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he filed the lettercomplaint for immorality against Escritor because in his frequent visits to the Hall of Justice of Las Piñas City, he learned from conversations therein that Escritor was living with a man not her husband and that she had an eighteen to twenty-year old son by this man. This prompted him to write to Judge Caoibes as he believed that employees of the judiciary should be respectable and Escritor’s live-in arrangement did not command respect.7 Respondent Escritor testified that when she entered the judiciary in 1999,8 she was already a widow, her husband having died in 1998.9 She admitted that she has been living with Luciano Quilapio, Jr. without the benefit of marriage for twenty years and that they have a son. But as a member of the religious sect known as the Jehovah’s Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In fact, after ten years of living together, she executed on July 28, 1991 a "Declaration of Pledging Faithfulness," viz: DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate in marital relationship; that I have done all within my ability to obtain legal recognition of this relationship by the proper public authorities and that it is because of having been unable to do so that I therefore make this public declaration pledging faithfulness in this marital relationship. I recognize this relationship as a binding tie before ‘Jehovah’ God and before all persons to be held to and honored in full accord with the principles of God’s Word. I will continue to seek the means to obtain legal recognition of this relationship by the civil authorities and if at any future time a change in circumstances make this possible, I promise to legalize this union. Signed this 28th day of July 1991.10 Escritor’s partner, Quilapio, executed a similar pledge on the same day.11 Both pledges were executed in Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her pledge, her husband was still alive but living with another woman. Quilapio was likewise married at that time, but had been separated in fact from his wife. During her testimony, Escritor volunteered to present members of her congregation to confirm the truthfulness of their "Declarations of Pledging Faithfulness," but Judge Caoibes deemed it unnecessary and considered her identification of her signature and the signature of Quilapio sufficient authentication of the documents.12 Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn, endorsed the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of Acting Court Administrator Zenaida N. Elepaño, directed Escritor to comment on the charge against her. In her comment, Escritor reiterated her religious congregation’s approval of her conjugal arrangement with Quilapio, viz: Herein respondent does not ignore alleged accusation but she reiterates to state with candor that there is no truth as to the veracity of same allegation. Included herewith are documents denominated as Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both respondent and her mate in marital relationship with the witnesses concurring their acceptance to the arrangement as approved by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch. Same marital arrangement is recognized as a binding tie before "JEHOVAH" God and before all persons to be held to and honored in full accord with the principles of God’s Word. xxx

xxx

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Undersigned submits to the just, humane and fair discretion of the Court with verification from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch . . . to which undersigned believes to be a high authority in relation to her case.13 Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Piñas City for investigation, report and recommendation. In the course of Judge Maceda’s investigation, Escritor again testified that her congregation allows her conjugal arrangement with Quilapio and it does not consider it immoral. She offered to supply the investigating judge some clippings which explain the basis of her congregation’s belief and practice regarding her conjugal arrangement. Escritor started living with Quilapio twenty years ago when her husband was still alive but living with another woman. She met this woman who confirmed to her that she was living with her (Escritor’s) husband.14 Gregorio Salazar, a member of the Jehovah’s Witnesses since 1985, also testified. He had been a presiding minister since 1991 and in such capacity is aware of the rules and regulations of their congregation. He explained the import of and procedure for executing a "Declaration of Pledging Faithfulness", viz: Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules and regulations in your congregation? A: Well, we of course, talk to the persons with regards (sic) to all the parties involved and then we request them to execute a Public Declaration of Pledge of faithfulness. Q: What is that document? A: Declaration of Pledge of faithfulness.

Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose (sic) to execute this document? A: This must be signed, the document must be signed by the elders of the congregation; the couple, who is a member (sic) of the congregation, baptized member and true member of the congregation. Q: What standard rules and regulations do you have in relation with this document? A: Actually, sir, the signing of that document, ah, with the couple has consent to marital relationship (sic) gives the Christian Congregation view that the couple has put themselves on record before God and man that they are faithful to each other. As if that relation is validated by God. Q: From your explanation, Minister, do you consider it a pledge or a document between the parties, who are members of the congregation? A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness. Q: And what does pledge mean to you? A: It means to me that they have contracted, let us say, I am the one who contracted with the opposite member of my congregation, opposite sex, and that this document will give us the right to a marital relationship. Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you to enter a marriage? A: Yes, Sir. Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof? A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship. Q: Do you mean to say, Minister, by executing this document the contracting parties have the right to cohabit? A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians follow. The basis is herein stated in the Book of Matthew, Chapter Five, Verse Twenty-two. So, in that verse of the Bible, Jesus said "that everyone divorcing his wife, except on account of fornication, makes her a subject for adultery, and whoever marries a divorced woman commits adultery.15 Escritor and Quilapio transferred to Salazar’s Congregation, the Almanza Congregation in Las Piñas, in May 2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar had no personal knowledge of the personal circumstances of Escritor and Quilapio when they executed their declarations. However, when the two transferred to Almanza, Salazar inquired about their status from the Atimonan Congregation, gathered comments of the elders therein, and requested a copy of their declarations. The Almanza Congregation assumed that the personal circumstances of the couple had been considered by the Atimonan Congregation when they executed their declarations. Escritor and Quilapio’s declarations are recorded in the Watch Tower Central office. They were executed in the usual and approved form prescribed by the Watch Tower Bible and Tract Society which was lifted from the article, "Maintaining Marriage in Honor Before God and Men," 16 in the March 15, 1977 issue of the Watch Tower magazine, entitled The Watchtower. The declaration requires the approval of the elders of the Jehovah’s Witnesses congregation and is binding within the congregation all over the world except in countries where divorce is allowed. The Jehovah’s congregation requires that at the time the declarations are executed, the couple cannot secure the civil authorities’ approval of the marital relationship because of legal impediments. It is thus standard practice of the congregation to check the couple’s marital status before giving imprimatur to the conjugal arrangement. The execution of the declaration finds scriptural basis in Matthew 5:32 that when the spouse commits adultery, the offended spouse can remarry. The marital status of the declarants and their respective spouses’ commission of adultery are investigated before the declarations are executed. Thus, in the case of Escritor, it is presumed that the Atimonan Congregation conducted an investigation on her marital status before the declaration was approved and the declaration is valid everywhere, including the Almanza Congregation. That Escritor’s and Quilapio’s declarations were approved are shown by the signatures of three witnesses, the elders in the Atimonan Congregation. Salazar confirmed from the congregation’s branch office that these three witnesses are elders in the Atimonan Congregation. Although in 1998 Escritor was widowed, thereby lifting the legal impediment to marry on her part, her mate is still not capacitated to remarry. Thus, their declarations remain valid. Once all legal impediments for both are lifted, the couple can already register their marriage with the civil authorities and the validity of the declarations ceases. The elders in the congregations can then solemnize their marriage as authorized by Philippine law. In sum, therefore, insofar as the congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain members in good standing in the congregation.17

Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovah’s Witnesses since 1974 and member of the headquarters of the Watch Tower Bible and Tract Society of the Philippines, Inc., presented the original copy of the magazine article entitled, "Maintaining Marriage Before God and Men" to which Escritor and Minister Salazar referred in their testimonies. The article appeared in the March 15, 1977 issue of the Watchtower magazine published in Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible and Tract Society of the Philippines, Inc., authorized Reyes to represent him in authenticating the article. The article is distributed to the Jehovah’s Witnesses congregations which also distribute them to the public.18 The parties submitted their respective memoranda to the investigating judge. Both stated that the issue for resolution is whether or not the relationship between respondent Escritor and Quilapio is valid and binding in their own religious congregation, the Jehovah’s Witnesses. Complainant Estrada adds however, that the effect of the relationship to Escritor’s administrative liability must likewise be determined. Estrada argued, through counsel, that the Declaration of Pledging Faithfulness recognizes the supremacy of the "proper public authorities" such that she bound herself "to seek means to . . . legalize their union." Thus, even assuming arguendo that the declaration is valid and binding in her congregation, it is binding only to her co-members in the congregation and serves only the internal purpose of displaying to the rest of the congregation that she and her mate are a respectable and morally upright couple. Their religious belief and practice, however, cannot override the norms of conduct required by law for government employees. To rule otherwise would create a dangerous precedent as those who cannot legalize their live-in relationship can simply join the Jehovah’s Witnesses congregation and use their religion as a defense against legal liability.19 On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with Quilapio based on the belief and practice of her religion, the Jehovah’s Witnesses. She quoted portions of the magazine article entitled, "Maintaining Marriage Before God and Men," in her memorandum signed by herself, viz: The Declaration of Pledging of Faithfulness (Exhibits "1" and "2") executed by the respondent and her mate greatly affect the administrative liability of respondent. Jehovah’s Witnesses admit and recognize (sic) the supremacy of the proper public authorities in the marriage arrangement. However, it is helpful to understand the relative nature of Caesar’s authority regarding marriage. From country to country, marriage and divorce legislation presents a multitude of different angles and aspects. Rather than becoming entangled in a confusion of technicalities, the Christian, or the one desiring to become a disciple of God’s Son, can be guided by basic Scriptural principles that hold true in all cases. God’s view is of first concern. So, first of all the person must consider whether that one’s present relationship, or the relationship into which he or she contemplates entering, is one that could meet with God’s approval, or whether in itself, it violates the standards of God’s Word. Take, for example, the situation where a man lives with a wife but also spends time living with another woman as a concubine. As long as such a state of concubinage prevails, the relationship of the second woman can never be harmonized with Christian principles, nor could any declaration on the part of the woman or the man make it so. The only right course is cessation of the relationship. Similarly with an incestuous relationship with a member of one’s immediate family, or a homosexual relationship or other such situation condemned by God’s Word. It is not the lack of any legal validation that makes such relationships unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a person involved in such a situation could not make any kind of "Declaration of Faithfulness," since it would have no merit in God’s eyes. If the relationship is such that it can have God’s approval, then, a second principle to consider is that one should do all one can to establish the honorableness of one’s marital union in the eyes of all. (Heb. 13:4). If divorce is possible, then such step should now be taken so that, having obtained the divorce (on whatever legal grounds may be available), the present union can receive civil validation as a recognized marriage. Finally, if the marital relationship is not one out of harmony with the principles of God’s Word, and if one has done all that can reasonably be done to have it recognized by civil authorities and has been blocked in doing so, then, a Declaration Pledging Faithfulness can be signed. In some cases, as has been noted, the extreme slowness of official action may make accomplishing of legal steps a matter of many, many years of effort. Or it may be that the costs represent a crushingly heavy burden that the individual would need years to be able to meet. In such cases, the declaration pledging faithfulness will provide the congregation with the basis for viewing the existing union

as honorable while the individual continues conscientiously to work out the legal aspects to the best of his ability. Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God, should be able to approach the matter in a balanced way, neither underestimating nor overestimating the validation offered by the political state. She always gives primary concern to God’s view of the union. Along with this, every effort should be made to set a fine example of faithfulness and devotion to one’s mate, thus, keeping the marriage "honorable among all." Such course will bring God’s blessing and result to the honor and praise of the author of marriage, Jehovah God. (1 Cor. 10:3133)20 Respondent also brought to the attention of the investigating judge that complainant’s Memorandum came from Judge Caoibes’ chambers21 whom she claims was merely using petitioner to malign her. In his Report and Recommendation, investigating judge Maceda found Escritor’s factual allegations credible as they were supported by testimonial and documentary evidence. He also noted that "(b)y strict Catholic standards, the live-in relationship of respondent with her mate should fall within the definition of immoral conduct, to wit: ‘that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community’ (7 C.J.S. 959)’ (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He pointed out, however, that "the more relevant question is whether or not to exact from respondent Escritor, a member of ‘Jehovah’s Witnesses,’ the strict moral standards of the Catholic faith in determining her administrative responsibility in the case at bar."22 The investigating judge acknowledged that "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 to his Creator (at p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernando’s separate opinion in German vs. Barangan, 135 SCRA 514, 530531)" and thereby recommended the dismissal of the complaint against Escritor.23 After considering the Report and Recommendation of Executive Judge Maceda, the Office of the Court Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court Administrator Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed from his recommendation to dismiss the complaint. DCA Lock stressed that although Escritor had become capacitated to marry by the time she joined the judiciary as her husband had died a year before, "it is due to her relationship with a married man, voluntarily carried on, that respondent may still be subject to disciplinary action."24 Considering the ruling of the Court in Dicdican v. Fernan, et al.25 that "court personnel have been enjoined to adhere to the exacting standards of morality and decency in their professional and private conduct in order to preserve the good name and integrity of the court of justice," DCA Lock found Escritor’s defense of freedom of religion unavailing to warrant dismissal of the charge of immorality. Accordingly, he recommended that respondent be found guilty of immorality and that she be penalized with suspension of six months and one day without pay with a warning that a repetition of a similar act will be dealt with more severely in accordance with the Civil Service Rules.26 II. Issue Whether or not respondent should be found guilty of the administrative charge of "gross and immoral conduct." To resolve this issue, it is necessary to determine the sub-issue of whether or not respondent’s right to religious freedom should carve out an exception from the prevailing jurisprudence on illicit relations for which government employees are held administratively liable. III. Applicable Laws Respondent is charged with committing "gross and immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code which provides, viz: Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process. (b) The following shall be grounds for disciplinary action: xxx

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(5) Disgraceful and immoral conduct; xxx.

Not represented by counsel, respondent, in layman’s terms, invokes the religious beliefs and practices and moral standards of her religion, the Jehovah’s Witnesses, in asserting that her conjugal arrangement with a man not her legal husband does not constitute disgraceful and immoral conduct for which she should be held administratively liable. While not articulated by respondent, she invokes religious freedom under Article III, Section 5 of the Constitution, which provides, viz: Sec. 5. No law shall be made respecting an 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. IV. Old World Antecedents of the American Religion Clauses To understand the life that the religion clauses have taken, it would be well to understand not only its birth in the United States, but its conception in the Old World. One cannot understand, much less intelligently criticize the approaches of the courts and the political branches to religious freedom in the recent past in the United States without a deep appreciation of the roots of these controversies in the ancient and medieval world and in the American experience.27 This fresh look at the religion clauses is proper in deciding this case of first impression. In primitive times, all of life may be said to have been religious. Every significant event in the primitive man’s life, from birth to death, was marked by religious ceremonies. Tribal society survived because religious sanctions effectively elicited adherence to social customs. A person who broke a custom violated a taboo which would then bring upon him "the wrathful vengeance of a superhuman mysterious power."28 Distinction between the religious and non-religious would thus have been meaningless to him. He sought protection from all kinds of evil - whether a wild beast or tribe enemy and lightning or wind - from the same person. The head of the clan or the Old Man of the tribe or the king protected his wards against both human and superhuman enemies. In time, the king not only interceded for his people with the divine powers, but he himself was looked upon as a divine being and his laws as divine decrees.29 Time came, however, when the function of acting as intermediary between human and spiritual powers became sufficiently differentiated from the responsibility of leading the tribe in war and policing it in peace as to require the full-time services of a special priest class. This saw the birth of the social and communal problem of the competing claims of the king and priest. Nevertheless, from the beginning, the king and not the priest was superior. The head of the tribe was the warrior, and although he also performed priestly functions, he carried out these functions because he was the head and representative of the community.30 There being no distinction between the religious and the secular, the same authority that promulgated laws regulating relations between man and man promulgated laws concerning man’s obligations to the supernatural. This authority was the king who was the head of the state and the source of all law and who only delegated performance of rituals and sacrifice to the priests. The Code of Hammurabi, king of Babylonia, imposed penalties for homicide, larceny, perjury, and other crimes; regulated the fees of surgeons and the wages of masons and tailors and prescribed rules for inheritance of property;31 and also catalogued the gods and assigned them their places in the divine hierarchy so as to put Hammurabi’s own god to a position of equality with existing gods.32 In sum, the relationship of religion to the state (king) in pre-Hebreic times may be characterized as a union of the two forces, with the state almost universally the dominant partner.33 With the rise of the Hebrew state, a new term had to be coined to describe the relation of the Hebrew state with the Mosaic religion: theocracy. The authority and power of the state was ascribed to God.34 The Mosaic creed was not merely regarded as the religion of the state, it was (at least until Saul) the state itself. Among the Hebrews, patriarch, prophet, and priest preceded king and prince. As man of God, Moses decided when the people should travel and when to pitch camp, when they should make war and when peace. Saul and David were made kings by the prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi, the Mosaic code combined civil laws with religious mandates, but unlike the Hammurabi Code, religious laws were not of secondary importance. On the contrary, religious motivation was primary and all-embracing: sacrifices were made and Israel was prohibited from exacting usury, mistreating aliens or using false weights, all because God commanded these. Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance the purposes of the state. Hammurabi unified Mesopotamia and established Babylon as its capital by elevating its city-god to a primary position over

the previous reigning gods.35 Moses, on the other hand, capitalized on the natural yearnings of the Hebrew slaves for freedom and independence to further God’s purposes. Liberation and Exodus were preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan was a preparation for the building of the temple and the full worship of God.36 Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than anything else, charted not only the future of religion in western civilization, but equally, the future of the relationship between religion and state in the west. This fact is acknowledged by many writers, among whom is Northcott who pointed out, viz: Historically it was the Hebrew and Christian conception of a single and universal God that introduced a religious exclusivism leading to compulsion and persecution in the realm of religion. Ancient religions were regarded as confined to each separate people believing in them, and the question of change from one religious belief to another did not arise. It was not until an exclusive fellowship, that the questions of proselytism, change of belief and liberty of religion arose.37 (emphasis supplied) The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not only superior to the state, but it was all of the state. The Law of God as transmitted through Moses and his successors was the whole of government. With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and David each received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon the king dominated prophet and priest. Saul disobeyed and even sought to slay Samuel the prophet of God.38 Under Solomon, the subordination of religion to state became complete; he used religion as an engine to further the state’s purposes. He reformed the order of priesthood established by Moses because the high priest under that order endorsed the claim of his rival to the throne.39 The subordination of religion to the state was also true in pre-Christian Rome which engaged in emperor-worship. When Augustus became head of the Roman state and the priestly hierarchy, he placed religion at a high esteem as part of a political plan to establish the real religion of pre-Christian Rome - the worship of the head of the state. He set his great uncle Julius Caesar among the gods, and commanded that worship of Divine Julius should not be less than worship of Apollo, Jupiter and other gods. When Augustus died, he also joined the ranks of the gods, as other emperors before him.40 The onset of Christianity, however, posed a difficulty to the emperor as the Christians’ dogmatic exclusiveness prevented them from paying homage to publicly accepted gods. In the first two centuries after the death of Jesus, Christians were subjected to persecution. By the time of the emperor Trajan, Christians were considered outlaws. Their crime was "hatred of the human race", placing them in the same category as pirates and brigands and other "enemies of mankind" who were subject to summary punishments.41 In 284, Diocletian became emperor and sought to reorganize the empire and make its administration more efficient. But the closely-knit hierarchically controlled church presented a serious problem, being a state within a state over which he had no control. He had two options: either to force it into submission and break its power or enter into an alliance with it and procure political control over it. He opted for force and revived the persecution, destroyed the churches, confiscated sacred books, imprisoned the clergy and by torture forced them to sacrifice.42 But his efforts proved futile. The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius and Licinius, his two co-rulers of the empire, in issuing an edict of toleration to Christians "on condition that nothing is done by them contrary to discipline."43 A year later, after Galerius died, Constantine and Licius jointly issued the epochal Edict of Milan (312 or 313), a document of monumental importance in the history of religious liberty. It provided "that liberty of worship shall not be denied to any, but that the mind and will of every individual shall be free to manage divine affairs according to his own choice." (emphasis supplied) Thus, all restrictive statutes were abrogated and it was enacted "that every person who cherishes the desire to observe the Christian religion shall freely and unconditionally proceed to observe the same without let or hindrance." Furthermore, it was provided that the "same free and open power to follow their own religion or worship is granted also to others, in accordance with the tranquillity of our times, in order that every person may have free opportunity to worship the object of his choice."(emphasis supplied)44

Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and eventually, exclusive power. Religion became an engine of state policy as Constantine considered Christianity a means of unifying his complex empire. Within seven years after the Edict of Milan, under the emperor’s command, great Christian edifices were erected, the clergy were freed from public burdens others had to bear, and private heathen sacrifices were forbidden. The favors granted to Christianity came at a price: state interference in religious affairs. Constantine and his successors called and dismissed church councils, and enforced unity of belief and practice. Until recently the church had been the victim of persecution and repression, but this time it welcomed the state’s persecution and repression of the nonconformist and the orthodox on the belief that it was better for heretics to be purged of their error than to die unsaved. Both in theory as in practice, the partnership between church and state was not easy. It was a constant struggle of one claiming dominance over the other. In time, however, after the collapse and disintegration of the Roman Empire, and while monarchical states were gradually being consolidated among the numerous feudal holdings, the church stood as the one permanent, stable and universal power. Not surprisingly, therefore, it claimed not merely equality but superiority over the secular states. This claim, symbolized by Pope Leo’s crowning of Charlemagne, became the church’s accepted principle of its relationship to the state in the Middle Ages. As viewed by the church, the union of church and state was now a union of the state in the church. The rulers of the states did not concede to this claim of supremacy. Thus, while Charlemagne received his crown from the Pope, he himself crowned his own son as successor to nullify the inference of supremacy.45 The whole history of medieval Europe was a struggle for supremacy between prince and Pope and the resulting religious wars and persecution of heretics and nonconformists. At about the second quarter of the 13th century, the Inquisition was established, the purpose of which was the discovery and extermination of heresy. Accused heretics were tortured with the approval of the church in the bull Ad extirpanda issued by Pope Innocent IV in 1252. The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the Catholic Church and resulting in the establishment of Protestant churches. While Protestants are accustomed to ascribe to the Reformation the rise of religious liberty and its acceptance as the principle governing the relations between a democratic state and its citizens, history shows that it is more accurate to say that the "same causes that gave rise to the Protestant revolution also resulted in the widespread acceptance of the principle of religious liberty, and ultimately of the principle of separation of church and state."46 Pleas for tolerance and freedom of conscience can without doubt be found in the writings of leaders of the Reformation. But just as Protestants living in the countries of papists pleaded for toleration of religion, so did the papists that lived where Protestants were dominant.47 Papist and Protestant governments alike accepted the idea of cooperation between church and state and regarded as essential to national unity the uniformity of at least the outward manifestations of religion.48 Certainly, Luther, leader of the Reformation, stated that "neither pope, nor bishop, nor any man whatever has the right of making one syllable binding on a Christian man, unless it be done with his own consent."49 But when the tables had turned and he was no longer the hunted heretic, he likewise stated when he made an alliance with the secular powers that "(h)eretics are not to be disputed with, but to be condemned unheard, and whilst they perish by fire, the faithful ought to pursue the evil to its source, and bathe their hands in the blood of the Catholic bishops, and of the Pope, who is a devil in disguise."50 To Luther, unity among the peoples in the interests of the state was an important consideration. Other personalities in the Reformation such as Melanchton, Zwingli and Calvin strongly espoused theocracy or the use of the state as an engine to further religion. In establishing theocracy in Geneva, Calvin made absence from the sermon a crime, he included criticism of the clergy in the crime of blasphemy punishable by death, and to eliminate heresy, he cooperated in the Inquisition.51 There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the Renaissance than the Reformation, wrote that "(t)he terrible papal edict, the more terrible imperial edict, the imprisonments, the confiscations, the recantations, the fagots and burnings, all these things I can see accomplish nothing except to make the evil more widespread."52 The minority or dissident sects also ardently advocated religious liberty. The Anabaptists, persecuted and despised, along with the Socinians (Unitarians) and the Friends of the Quakers founded by George Fox in the 17th century, endorsed the supremacy and freedom of the individual conscience. They regarded religion as outside the realm of political governments. 53 The English Baptists proclaimed that the "magistrate is not to meddle with religion or matters of conscience, nor compel men to this or that form of religion."54 Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished: the Erastian (after the German doctor Erastus), the theocratic, and the separatist. The first assumed state superiority in ecclesiastical affairs and the use of

religion as an engine of state policy as demonstrated by Luther’s belief that civic cohesion could not exist without religious unity so that coercion to achieve religious unity was justified. The second was founded on ecclesiastical supremacy and the use of state machinery to further religious interests as promoted by Calvin. The third, which was yet to achieve ultimate and complete expression in the New World, was discernibly in its incipient form in the arguments of some dissident minorities that the magistrate should not intermeddle in religious affairs.55 After the Reformation, Erastianism pervaded all Europe except for Calvin’s theocratic Geneva. In England, perhaps more than in any other country, Erastianism was at its height. To illustrate, a statute was enacted by Parliament in 1678, which, to encourage woolen trade, imposed on all clergymen the duty of seeing to it that no person was buried in a shroud made of any substance other than wool.56 Under Elizabeth, supremacy of the crown over the church was complete: ecclesiastical offices were regulated by her proclamations, recusants were fined and imprisoned, Jesuits and proselytizing priests were put to death for high treason, the thirty-nine Articles of the Church of England were adopted and English Protestantism attained its present doctrinal status.57 Elizabeth was to be recognized as "the only Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical things or causes as temporal." She and her successors were vested, in their dominions, with "all manner of jurisdictions, privileges, and preeminences, in any wise touching or concerning any spiritual or ecclesiastical jurisdiction."58 Later, however, Cromwell established the constitution in 1647 which granted full liberty to all Protestant sects, but denied toleration to Catholics.59 In 1689, William III issued the Act of Toleration which established a de facto toleration for all except Catholics. The Catholics achieved religious liberty in the 19th century when the Roman Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858 when they were finally permitted to sit in Parliament.60 When the representatives of the American states met in Philadelphia in 1787 to draft the constitutional foundation of the new republic, the theocratic state which had flourished intermittently in Israel, Judea, the Holy Roman Empire and Geneva was completely gone. The prevailing church-state relationship in Europe was Erastianism embodied in the system of jurisdictionalism whereby one faith was favored as the official state-supported religion, but other faiths were permitted to exist with freedom in various degrees. No nation had yet adopted as the basis of its church-state relations the principle of the mutual independence of religion and government and the concomitant principle that neither might be used as an engine to further the policies of the other, although the principle was in its seminal form in the arguments of some dissident minorities and intellectual leaders of the Renaissance. The religious wars of 16th and 17th century Europe were a thing of the past by the time America declared its independence from the Old World, but their memory was still vivid in the minds of the Constitutional Fathers as expressed by the United States Supreme Court, viz: The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecution generated in large part by established sects determined to maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, non-attendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them.61 In 1784, James Madison captured in this statement the entire history of church-state relations in Europe up to the time the United States Constitution was adopted, viz: Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish religious discord, by proscribing all differences in religious opinions.62 In sum, this history shows two salient features: First, with minor exceptions, the history of church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willing acceptance of that role by the vanguards of religion in exchange for the favors and mundane benefits conferred by ambitious princes and emperors in exchange for religion’s invaluable service. This was the context in which the unique experiment of the principle of religious freedom and separation of church and state saw its birth in American constitutional democracy and in human history.63

V. Factors Contributing of the American Religion Clauses

to

the

Adoption

Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England, established many of the American colonies. British thought pervaded these colonies as the immigrants brought with them their religious and political ideas from England and English books and pamphlets largely provided their cultural fare.64 But although these settlers escaped from Europe to be freed from bondage of laws which compelled them to support and attend government favored churches, some of these settlers themselves transplanted into American soil the oppressive practices they escaped from. The charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized them to erect religious establishments, which all, whether believers or not, were required to support or attend.65 At one time, six of the colonies established a state religion. Other colonies, however, such as Rhode Island and Delaware tolerated a high degree of religious diversity. Still others, which originally tolerated only a single religion, eventually extended support to several different faiths.66 This was the state of the American colonies when the unique American experiment of separation of church and state came about. The birth of the experiment cannot be attributed to a single cause or event. Rather, a number of interdependent practical and ideological factors contributed in bringing it forth. Among these were the "English Act of Toleration of 1689, the multiplicity of sects, the lack of church affiliation on the part of most Americans, the rise of commercial intercourse, the exigencies of the Revolutionary War, the Williams-Penn tradition and the success of their experiments, the writings of Locke, the social contract theory, the Great Awakening, and the influence of European rationalism and deism."67 Each of these factors shall be briefly discussed. First, the practical factors. England’s policy of opening the gates of the American colonies to different faiths resulted in the multiplicity of sects in the colonies. With an Erastian justification, English lords chose to forego protecting what was considered to be the true and eternal church of a particular time in order to encourage trade and commerce. The colonies were large financial investments which would be profitable only if people would settle there. It would be difficult to engage in trade with persons one seeks to destroy for religious belief, thus tolerance was a necessity. This tended to distract the colonies from their preoccupations over their religion and its exclusiveness, encouraging them "to think less of the Church and more of the State and of commerce."68 The diversity brought about by the colonies’ open gates encouraged religious freedom and non-establishment in several ways. First, as there were too many dissenting sects to abolish, there was no alternative but to learn to live together. Secondly, because of the daily exposure to different religions, the passionate conviction in the exclusive rightness of one’s religion, which impels persecution for the sake of one’s religion, waned. Finally, because of the great diversity of the sects, religious uniformity was not possible, and without such uniformity, establishment could not survive.69 But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents. Only about four percent of the entire population of the country had a church affiliation at the time the republic was founded.70 This might be attributed to the drifting to the American colonies of the skepticism that characterized European Enlightenment.71 Economic considerations might have also been a factor. The individualism of the American colonist, manifested in the multiplicity of sects, also resulted in much unaffiliated religion which treated religion as a personal noninstitutional matter. The prevalence of lack of church affiliation contributed to religious liberty and disestablishment as persons who were not connected with any church were not likely to persecute others for similar independence nor accede to compulsory taxation to support a church to which they did not belong.72 However, for those who were affiliated to churches, the colonial policy regarding their worship generally followed the tenor of the English Act of Toleration of 1689. In England, this Act conferred on Protestant dissenters the right to hold public services subject to registration of their ministers and places of worship.73 Although the toleration accorded to Protestant dissenters who qualified under its terms was only a modest advance in religious freedom, it nevertheless was of some influence to the American experiment.74 Even then, for practical considerations, concessions had to be made to other dissenting churches to ensure their cooperation in the War of Independence which thus had a unifying effect on the colonies. Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical religious revival originating in New England, caused a break with formal church religion and a resistance to coercion by established churches. This movement emphasized an emotional, personal religion that appealed directly to the individual,

putting emphasis on the rights and duties of the individual conscience and its answerability exclusively to God. Thus, although they had no quarrel with orthodox Christian theology as in fact they were fundamentalists, this group became staunch advocates of separation of church and state.75 Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode Island where he established a community of Baptists, Quakers and other nonconformists. In this colony, religious freedom was not based on practical considerations but on the concept of mutual independence of religion and government. In 1663, Rhode Island obtained a charter from the British crown which declared that settlers have it "much on their heart to hold forth a livelie experiment that a most flourishing civil state may best be maintained . . . with full libertie in religious concernments."76 In Williams’ pamphlet, The Bloudy Tenent of Persecution for cause of Conscience, discussed in a Conference between Truth and Peace,77 he articulated the philosophical basis for his argument of religious liberty. To him, religious freedom and separation of church and state did not constitute two but only one principle. Religious persecution is wrong because it "confounds the Civil and Religious" and because "States . . . are proved essentially Civil. The "power of true discerning the true fear of God" is not one of the powers that the people have transferred to Civil Authority.78 Williams’ Bloudy Tenet is considered an epochal milestone in the history of religious freedom and the separation of church and state.79 William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of toleration, having been imprisoned for his religious convictions as a member of the despised Quakers. He opposed coercion in matters of conscience because "imposition, restraint and persecution for conscience sake, highly invade the Divine prerogative." Aside from his idealism, proprietary interests made toleration in Pennsylvania necessary. He attracted large numbers of settlers by promising religious toleration, thus bringing in immigrants both from the Continent and Britain. At the end of the colonial period, Pennsylvania had the greatest variety of religious groups. Penn was responsible in large part for the "Concessions and agreements of the Proprietors, Freeholders, and inhabitants of West Jersey, in America", a monumental document in the history of civil liberty which provided among others, for liberty of conscience.80 The Baptist followers of Williams and the Quakers who came after Penn continued the tradition started by the leaders of their denominations. Aside from the Baptists and the Quakers, the Presbyterians likewise greatly contributed to the evolution of separation and freedom.81 The Constitutional fathers who convened in Philadelphia in 1787, and Congress and the states that adopted the First Amendment in 1791 were very familiar with and strongly influenced by the successful examples of Rhode Island and Pennsylvania.82 Undeniably, John Locke and the social contract theory also contributed to the American experiment. The social contract theory popularized by Locke was so widely accepted as to be deemed self-evident truth in America’s Declaration of Independence. With the doctrine of natural rights and equality set forth in the Declaration of Independence, there was no room for religious discrimination. It was difficult to justify inequality in religious treatment by a new nation that severed its political bonds with the English crown which violated the self-evident truth that all men are created equal.83 The social contract theory was applied by many religious groups in arguing against establishment, putting emphasis on religion as a natural right that is entirely personal and not within the scope of the powers of a political body. That Locke and the social contract theory were influential in the development of religious freedom and separation is evident from the memorial presented by the Baptists to the Continental Congress in 1774, viz: Men unite in society, according to the great Mr. Locke, with an intention in every one the better to preserve himself, his liberty and property. The power of the society, or Legislature constituted by them, can never be supposed to extend any further than the common good, but is obliged to secure every one’s property. To give laws, to receive obedience, to compel with the sword, belong to none but the civil magistrate; and on this ground we affirm that the magistrate’s power extends not to establishing any articles of faith or forms of worship, by force of laws; for laws are of no force without penalties. The care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but pure and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God.84 (emphasis supplied) The idea that religion was outside the jurisdiction of civil government was acceptable to both the religionist and rationalist. To the religionist, God or Christ did not desire that government have that jurisdiction ("render unto Caesar that which is Caesar’s"; "my kingdom is not of this world") and to the rationalist, the power to act in the realm

of religion was not one of the powers conferred on government as part of the social contract.85 Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the Revolutionary and post-revolutionary period were also influenced by European deism and rationalism,86 in general, and some were apathetic if not antagonistic to formal religious worship and institutionalized religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison, among others were reckoned to be among the Unitarians or Deists. Unitarianism and Deism contributed to the emphasis on secular interests and the relegation of historic theology to the background. 87 For these men of the enlightenment, religion should be allowed to rise and fall on its own, and the state must be protected from the clutches of the church whose entanglements has caused intolerance and corruption as witnessed throughout history.88 Not only the leaders but also the masses embraced rationalism at the end of the eighteenth century, accounting for the popularity of Paine’s Age of Reason.89 Finally, the events leading to religious freedom and separation in Virginia contributed significantly to the American experiment of the First Amendment. Virginia was the "first state in the history of the world to proclaim the decree of absolute divorce between church and state."90 Many factors contributed to this, among which were that half to two-thirds of the population were organized dissenting sects, the Great Awakening had won many converts, the established Anglican Church of Virginia found themselves on the losing side of the Revolution and had alienated many influential laymen with its identification with the Crown’s tyranny, and above all, present in Virginia was a group of political leaders who were devoted to liberty generally,91 who had accepted the social contract as self-evident, and who had been greatly influenced by Deism and Unitarianism. Among these leaders were Washington, Patrick Henry, George Mason, James Madison and above the rest, Thomas Jefferson. The first major step towards separation in Virginia was the adoption of the following provision in the Bill of Rights of the state’s first constitution: That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.92 (emphasis supplied) The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presbyterians and Lutherans flooded the first legislative assembly with petitions for abolition of establishment. While the majority of the population were dissenters, a majority of the legislature were churchmen. The legislature compromised and enacted a bill in 1776 abolishing the more oppressive features of establishment and granting exemptions to the dissenters, but not guaranteeing separation. It repealed the laws punishing heresy and absence from worship and requiring the dissenters to contribute to the support of the establishment.93 But the dissenters were not satisfied; they not only wanted abolition of support for the establishment, they opposed the compulsory support of their own religion as others. As members of the established church would not allow that only they would pay taxes while the rest did not, the legislature enacted in 1779 a bill making permanent the establishment’s loss of its exclusive status and its power to tax its members; but those who voted for it did so in the hope that a general assessment bill would be passed. Without the latter, the establishment would not survive. Thus, a bill was introduced in 1779 requiring every person to enroll his name with the county clerk and indicate which "society for the purpose of Religious Worship" he wished to support. On the basis of this list, collections were to be made by the sheriff and turned over to the clergymen and teachers designated by the religious congregation. The assessment of any person who failed to enroll in any society was to be divided proportionately among the societies.94 The bill evoked strong opposition. In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of the Christian Religion" was introduced requiring all persons "to pay a moderate tax or contribution annually for the support of the Christian religion, or of some Christian church, denomination or communion of Christians, or for some form of Christian worship."95 This likewise aroused the same opposition to the 1779 bill. The most telling blow against the 1784 bill was the monumental "Memorial and Remonstrance against Religious Assessments" written by Madison and widely distributed before the reconvening of legislature in the fall of 1785.96 It stressed natural rights, the government’s lack of jurisdiction over the domain of religion, and the social contract as the ideological basis of separation while also citing practical considerations such as loss of population through migration. He wrote, viz:

Because we hold it for a ‘fundamental and undeniable truth,’ that religion, or the duty which we owe to our creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The religion, then, of every man, must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is, in its nature, an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated in their own minds, cannot follow the dictates of other men; it is unalienable, also, because what is here a right towards men, is a duty towards the creator. It is the duty of every man to render the creator such homage, and such only as he believes to be acceptable to him; this duty is precedent, both in order of time and degree of obligation, to the claims of civil society. Before any man can be considered as a member of civil society, he must be considered as a subject of the governor of the universe; and if a member of civil society, who enters into any subordinate association, must always do it with a reservation of his duty to the general authority, much more must every man who becomes a member of any particular civil society do it with the saving his allegiance to the universal sovereign.97 (emphases supplied) Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number of signatures appended to the Memorial. The assessment bill was speedily defeated. Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had not been voted on, the "Bill for Establishing Religious Freedom", and it was finally passed in January 1786. It provided, viz: Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend not only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; xxx

xxx

xxx

Be it therefore enacted by the General Assembly. That no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or beliefs, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.98 (emphases supplied) This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general or particular establishment in Virginia.99 But the passage of this law was obtained not only because of the influence of the great leaders in Virginia but also because of substantial popular support coming mainly from the two great dissenting sects, namely the Presbyterians and the Baptists. The former were never established in Virginia and an underprivileged minority of the population. This made them anxious to pull down the existing state church as they realized that it was impossible for them to be elevated to that privileged position. Apart from these expediential considerations, however, many of the Presbyterians were sincere advocates of separation100 grounded on rational, secular arguments and to the language of natural religion.101 Influenced by Roger Williams, the Baptists, on the other hand, assumed that religion was essentially a matter of concern of the individual and his God, i.e., subjective, spiritual and supernatural, having no relation with the social order.102 To them, the Holy Ghost was sufficient to maintain and direct the Church without governmental assistance and state-supported religion was contrary ti the spirit of the Gospel.103 Thus, separation was necessary.104 Jefferson’s religious freedom statute was a milestone in the history of religious freedom. The United States Supreme Court has not just once acknowledged that the provisions of the First Amendment of the U.S. Constitution had the same objectives and intended to afford the same protection against government interference with religious liberty as the Virginia Statute of Religious Liberty. Even in the absence of the religion clauses, the principle that government had no power to legislate in the area of religion by restricting its free exercise or establishing it was implicit in the Constitution of 1787. This could be deduced from the prohibition of any religious test for federal office in Article VI of the Constitution and the assumed lack of power of Congress to act on any subject not expressly mentioned in the Constitution.105 However, omission of an express guaranty of religious freedom and other natural rights nearly prevented the ratification of the Constitution.106 In the ratifying conventions of almost every state, some objection was expressed to the absence of a restriction on the Federal Government as regards legislation on

religion.107 Thus, in 1791, this restriction was made explicit with the adoption of the religion clauses in the First Amendment as they are worded to this day, with the first part usually referred to as the Establishment Clause and the second part, the Free Exercise Clause, viz: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. VI. Religion Clauses in the United States: Concept, Jurisprudence, Standards With the widespread agreement regarding the value of the First Amendment religion clauses comes an equally broad disagreement as to what these clauses specifically require, permit and forbid. No agreement has been reached by those who have studied the religion clauses as regards its exact meaning and the paucity of records in Congress renders it difficult to ascertain its meaning.108 Consequently, the jurisprudence in this area is volatile and fraught with inconsistencies whether within a Court decision or across decisions. One source of difficulty is the difference in the context in which the First Amendment was adopted and in which it is applied today. In the 1780s, religion played a primary role in social life - i.e., family responsibilities, education, health care, poor relief, and other aspects of social life with significant moral dimension - while government played a supportive and indirect role by maintaining conditions in which these activities may be carried out by religious or religiously-motivated associations. Today, government plays this primary role and religion plays the supportive role.109 Government runs even family planning, sex education, adoption and foster care programs.110 Stated otherwise and with some exaggeration, "(w)hereas two centuries ago, in matters of social life which have a significant moral dimension, government was the handmaid of religion, today religion, in its social responsibilities, as contrasted with personal faith and collective worship, is the handmaid of government."111 With government regulation of individual conduct having become more pervasive, inevitably some of those regulations would reach conduct that for some individuals are religious. As a result, increasingly, there may be inadvertent collisions between purely secular government actions and religion clause values.112 Parallel to this expansion of government has been the expansion of religious organizations in population, physical institutions, types of activities undertaken, and sheer variety of denominations, sects and cults. Churches run day-care centers, retirement homes, hospitals, schools at all levels, research centers, settlement houses, halfway houses for prisoners, sports facilities, theme parks, publishing houses and mass media programs. In these activities, religious organizations complement and compete with commercial enterprises, thus blurring the line between many types of activities undertaken by religious groups and secular activities. Churches have also concerned themselves with social and political issues as a necessary outgrowth of religious faith as witnessed in pastoral letters on war and peace, economic justice, and human life, or in ringing affirmations for racial equality on religious foundations. Inevitably, these developments have brought about substantial entanglement of religion and government. Likewise, the growth in population density, mobility and diversity has significantly changed the environment in which religious organizations and activities exist and the laws affecting them are made. It is no longer easy for individuals to live solely among their own kind or to shelter their children from exposure to competing values. The result is disagreement over what laws should require, permit or prohibit;113 and agreement that if the rights of believers as well as non-believers are all to be respected and given their just due, a rigid, wooden interpretation of the religion clauses that is blind to societal and political realities must be avoided.114 Religion cases arise from different circumstances. The more obvious ones arise from a government action which purposely aids or inhibits religion. These cases are easier to resolve as, in general, these actions are plainly unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of intent to aid or inhibit religion.115 The more difficult religion clause cases involve government action with a secular purpose and general applicability which incidentally or inadvertently aids or burdens religious exercise. In Free Exercise Clause cases, these government actions are referred to as those with "burdensome effect" on religious exercise even if the government action is not religiously motivated.116 Ideally, the legislature would recognize the religions and their practices and would consider them, when practical, in enacting laws of general application. But when the legislature fails to do so, religions that are threatened and burdened turn to the courts for protection.117 Most of these free exercise claims brought to the Court are for exemption, not invalidation of the facially neutral law that has a "burdensome" effect.118

With the change in political and social context and the increasing inadvertent collisions between law and religious exercise, the definition of religion for purposes of interpreting the religion clauses has also been modified to suit current realities. Defining religion is a difficult task for even theologians, philosophers and moralists cannot agree on a comprehensive definition. Nevertheless, courts must define religion for constitutional and other legal purposes.119 It was in the 1890 case of Davis v. Beason120 that the United States Supreme Court first had occasion to define religion, viz: The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter. The First Amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect.121 The definition was clearly theistic which was reflective of the popular attitudes in 1890. In 1944, the Court stated in United States v. Ballard122 that the free exercise of religion "embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths."123 By the 1960s, American pluralism in religion had flourished to include non-theistic creeds from Asia such as Buddhism and Taoism.124 In 1961, the Court, in Torcaso v. Watkins,125 expanded the term "religion" to non-theistic beliefs such as Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court faced a definitional problem in United States v. Seeger126 which involved four men who claimed "conscientious objector" status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of any organized religion opposed to war, but when specifically asked about his belief in a Supreme Being, Seeger stated that "you could call (it) a belief in a Supreme Being or God. These just do not happen to be the words that I use." Forest Peter, another one of the four claimed that after considerable meditation and reflection "on values derived from the Western religious and philosophical tradition," he determined that it would be "a violation of his moral code to take human life and that he considered this belief superior to any obligation to the state." The Court avoided a constitutional question by broadly interpreting not the Free Exercise Clause, but the statutory definition of religion in the Universal Military Training and Service Act of 1940 which exempt from combat anyone "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." Speaking for the Court, Justice Clark ruled, viz: Congress, in using the expression ‘Supreme Being’ rather than the designation ‘God,’ was merely clarifying the meaning of religious tradition and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views (and) the test of belief ‘in relation to a Supreme Being’ is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to the orthodox belief in God. (emphasis supplied) The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of such religious belief and training. Federal and state courts have expanded the definition of religion in Seeger to include even non-theistic beliefs such as Taoism or Zen Buddhism. It has been proposed that basically, a creed must meet four criteria to qualify as religion under the First Amendment. First, there must be belief in God or some parallel belief that occupies a central place in the believer’s life. Second, the religion must involve a moral code transcending individual belief, i.e., it cannot be purely subjective. Third, a demonstrable sincerity in belief is necessary, but the court must not inquire into the truth or reasonableness of the belief.127 Fourth, there must be some associational ties,128 although there is also a view that religious beliefs held by a single person rather than being part of the teachings of any kind of group or sect are entitled to the protection of the Free Exercise Clause.129 Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having hurdled the issue of definition, the court then has to draw lines to determine what is or is not permissible under the religion clauses. In this task, the purpose of the clauses is the yardstick. Their purpose is singular; they are two sides of the same coin.130 In devoting two clauses to religion, the Founders were stating not

two opposing thoughts that would cancel each other out, but two complementary thoughts that apply in different ways in different circumstances.131 The purpose of the religion clauses - both in the restriction it imposes on the power of the government to interfere with the free exercise of religion and the limitation on the power of government to establish, aid, and support religion - is the protection and promotion of religious liberty.132 The end, the goal, and the rationale of the religion clauses is this liberty.133 Both clauses were adopted to prevent government imposition of religious orthodoxy; the great evil against which they are directed is government-induced homogeneity.134 The Free Exercise Clause directly articulates the common objective of the two clauses and the Establishment Clause specifically addresses a form of interference with religious liberty with which the Framers were most familiar and for which government historically had demonstrated a propensity.135 In other words, free exercise is the end, proscribing establishment is a necessary means to this end to protect the rights of those who might dissent from whatever religion is established.136 It has even been suggested that the sense of the First Amendment is captured if it were to read as "Congress shall make no law respecting an establishment of religion or otherwise prohibiting the free exercise thereof" because the fundamental and single purpose of the two religious clauses is to "avoid any infringement on the free exercise of religions"137 Thus, the Establishment Clause mandates separation of church and state to protect each from the other, in service of the larger goal of preserving religious liberty. The effect of the separation is to limit the opportunities for any religious group to capture the state apparatus to the disadvantage of those of other faiths, or of no faith at all138 because history has shown that religious fervor conjoined with state power is likely to tolerate far less religious disagreement and disobedience from those who hold different beliefs than an enlightened secular state.139 In the words of the U.S. Supreme Court, the two clauses are interrelated, viz: "(t)he structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority."140 In upholding religious liberty as the end goal in religious clause cases, the line the court draws to ensure that government does not establish and instead remains neutral toward religion is not absolutely straight. Chief Justice Burger explains, viz: The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded and none inhibited.141 (emphasis supplied) Consequently, U.S. jurisprudence has produced two identifiably different, 142 even opposing, strains of jurisprudence on the religion clauses: separation (in the form of strict separation or the tamer version of strict neutrality or separation) and benevolent neutrality or accommodation. A view of the landscape of U.S. religion clause cases would be useful in understanding these two strains, the scope of protection of each clause, and the tests used in religious clause cases. Most of these cases are cited as authorities in Philippine religion clause cases. A. Free Exercise Clause The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United States.143 This landmark case involved Reynolds, a Mormon who proved that it was his religious duty to have several wives and that the failure to practice polygamy by male members of his religion when circumstances would permit would be punished with damnation in the life to come. Reynolds’ act of contracting a second marriage violated Section 5352, Revised Statutes prohibiting and penalizing bigamy, for which he was convicted. The Court affirmed Reynolds’ conviction, using what in jurisprudence would be called the belief-action test which allows absolute protection to belief but not to action. It cited Jefferson’s Bill Establishing Religious Freedom which, according to the Court, declares "the true distinction between what properly belongs to the Church and what to the State."144 The bill, making a distinction between belief and action, states in relevant part, viz: That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty; that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.145 (emphasis supplied) The Court then held, viz:

Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. . .

view, essential to enlightened opinion and right conduct on the part of citizens of a democracy.155

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifice were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

Cantwell took a step forward from the protection afforded by the Reynolds case in that it not only affirmed protection of belief but also freedom to act for the propagation of that belief, viz:

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.146 The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from regulating individual religious beliefs, but placed no restriction on the ability of the state to regulate religiously motivated conduct. It was logical for belief to be accorded absolute protection because any statute designed to prohibit a particular religious belief unaccompanied by any conduct would most certainly be motivated only by the legislature’s preference of a competing religious belief. Thus, all cases of regulation of belief would amount to regulation of religion for religious reasons violative of the Free Exercise Clause. On the other hand, most state regulations of conduct are for public welfare purposes and have nothing to do with the legislature’s religious preferences. Any burden on religion that results from state regulation of conduct arises only when particular individuals are engaging in the generally regulated conduct because of their particular religious beliefs. These burdens are thus usually inadvertent and did not figure in the belief-action test. As long as the Court found that regulation address action rather than belief, the Free Exercise Clause did not pose any problem.147 The Free Exercise Clause thus gave no protection against the proscription of actions even if considered central to a religion unless the legislature formally outlawed the belief itself.148 This belief-action distinction was held by the Court for some years as shown by cases where the Court upheld other laws which burdened the practice of the Mormon religion by imposing various penalties on polygamy such as the Davis case and Church of Latter Day Saints v. United States.149 However, more than a century since Reynolds was decided, the Court has expanded the scope of protection from belief to speech and conduct. But while the belief-action test has been abandoned, the rulings in the earlier Free Exercise cases have gone unchallenged. The belief-action distinction is still of some importance though as there remains an absolute prohibition of governmental proscription of beliefs.150 The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs151 and proscribes government from questioning a person’s beliefs or imposing penalties or disabilities based solely on those beliefs. The Clause extends protection to both beliefs and unbelief. Thus, in Torcaso v. Watkins, 152 a unanimous Court struck down a state law requiring as a qualification for public office an oath declaring belief in the existence of God. The protection also allows courts to look into the good faith of a person in his belief, but prohibits inquiry into the truth of a person’s religious beliefs. As held in United States v. Ballard,153 "(h)eresy trials are foreign to the Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs." Next to belief which enjoys virtually absolute protection, religious speech and expressive religious conduct are accorded the highest degree of protection. Thus, in the 1940 case of Cantwell v. Connecticut,154 the Court struck down a state law prohibiting door-to-door solicitation for any religious or charitable cause without prior approval of a state agency. The law was challenged by Cantwell, a member of the Jehovah’s Witnesses which is committed to active proselytizing. The Court invalidated the state statute as the prior approval necessary was held to be a censorship of religion prohibited by the Free Exercise Clause. The Court held, viz: In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one may seem the rankest error to his neighbor. To persuade others to his point of view, the pleader, as we know, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long

Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. . . In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. (emphasis supplied)156 The Court stated, however, that government had the power to regulate the times, places, and manner of solicitation on the streets and assure the peace and safety of the community. Three years after Cantwell, the Court in Douglas v. City of Jeanette, 157 ruled that police could not prohibit members of the Jehovah’s Witnesses from peaceably and orderly proselytizing on Sundays merely because other citizens complained. In another case likewise involving the Jehovah’s Witnesses, Niemotko v. Maryland,158 the Court unanimously held unconstitutional a city council’s denial of a permit to the Jehovah’s Witnesses to use the city park for a public meeting. The city council’s refusal was because of the "unsatisfactory" answers of the Jehovah’s Witnesses to questions about Catholicism, military service, and other issues. The denial of the public forum was considered blatant censorship. While protected, religious speech in the public forum is still subject to reasonable time, place and manner regulations similar to nonreligious speech. Religious proselytizing in congested areas, for example, may be limited to certain areas to maintain the safe and orderly flow of pedestrians and vehicular traffic as held in the case of Heffron v. International Society for Krishna Consciousness.159 The least protected under the Free Exercise Clause is religious conduct, usually in the form of unconventional religious practices. Protection in this realm depends on the character of the action and the government rationale for regulating the action.160 The Mormons’ religious conduct of polygamy is an example of unconventional religious practice. As discussed in the Reynolds case above, the Court did not afford protection to the practice. Reynolds was reiterated in the 1890 case of Davis again involving Mormons, where the Court held, viz: "(c)rime is not the less odious because sanctioned by what any particular sect may designate as religion."161 The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of religiously dictated conduct would be upheld no matter how central the conduct was to the exercise of religion and no matter how insignificant was the government’s non-religious regulatory interest so long as the government is proscribing action and not belief. Thus, the Court abandoned the simplistic beliefaction distinction and instead recognized the deliberate-inadvertent distinction, i.e., the distinction between deliberate state interference of religious exercise for religious reasons which was plainly unconstitutional and government’s inadvertent interference with religion in pursuing some secular objective.162 In the 1940 case of Minersville School District v. Gobitis,163 the Court upheld a local school board requirement that all public school students participate in a daily flag salute program, including the Jehovah’s Witnesses who were forced to salute the American flag in violation of their religious training, which considered flag salute to be worship of a "graven image." The Court recognized that the general requirement of compulsory flag salute inadvertently burdened the Jehovah Witnesses’ practice of their religion, but justified the government regulation as an appropriate means of attaining national unity, which was the "basis of national security." Thus, although the Court was already aware of the deliberate-inadvertent distinction in government interference with religion, it continued to hold that the Free Exercise Clause presented no problem to interference with religion that was inadvertent no matter how serious the interference, no matter how trivial the state’s non-religious objectives, and no matter how many alternative approaches were available to the state to pursue its objectives with less impact on religion, so long as government was acting in pursuit of a secular objective. Three years later, the Gobitis decision was overturned in West Virginia v. Barnette164 which involved a similar set of facts and issue. The Court recognized that saluting the flag, in connection with the pledges, was a form of utterance and the flag salute program was a compulsion of students to declare a belief. The Court ruled that "compulsory unification of opinions leads only to the unanimity of the graveyard" and exempt the students who were members of the Jehovah’s Witnesses from saluting the flag. A close scrutiny of the case, however, would show that it was decided not on the issue of religious conduct as the Court said, "(n)or does the issue as we see it turn on

one’s possession of particular religious views or the sincerity with which they are held. While religion supplies appellees’ motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual." (emphasis supplied)165 The Court pronounced, however, that, "freedoms of speech and of press, of assembly, and of worship . . . are susceptible only of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect."166 The Court seemed to recognize the extent to which its approach in Gobitis subordinated the religious liberty of political minorities - a specially protected constitutional value to the common everyday economic and public welfare objectives of the majority in the legislature. This time, even inadvertent interference with religion must pass judicial scrutiny under the Free Exercise Clause with only grave and immediate danger sufficing to override religious liberty. But the seeds of this heightened scrutiny would only grow to a full flower in the 1960s.167 Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern free exercise jurisprudence.168 A two-part balancing test was established in Braunfeld v. Brown169 where the Court considered the constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs required them to observe another day as the Sabbath and abstain from commercial activity on Saturday. Chief Justice Warren, writing for the Court, found that the law placed a severe burden on Sabattarian retailers. He noted, however, that since the burden was the indirect effect of a law with a secular purpose, it would violate the Free Exercise Clause only if there were alternative ways of achieving the state’s interest. He employed a two-part balancing test of validity where the first step was for plaintiff to show that the regulation placed a real burden on his religious exercise. Next, the burden would be upheld only if the state showed that it was pursuing an overriding secular goal by the means which imposed the least burden on religious practices.170 The Court found that the state had an overriding secular interest in setting aside a single day for rest, recreation and tranquility and there was no alternative means of pursuing this interest but to require Sunday as a uniform rest day. Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v. Verner.171 This test was similar to the two-part balancing test in Braunfeld,172 but this latter test stressed that the state interest was not merely any colorable state interest, but must be paramount and compelling to override the free exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied. She sought recourse in the Supreme Court. In laying down the standard for determining whether the denial of benefits could withstand constitutional scrutiny, the Court ruled, viz: Plainly enough, appellee’s conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand appellant’s constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant’s religion may be justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate. . .’ NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.173 (emphasis supplied) The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rational relationship of the substantial infringement to the religious right and a colorable state interest. "(I)n this highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’ Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315."174 The Court found that there was no such compelling state interest to override Sherbert’s religious liberty. It added that even if the state could show that Sherbert’s exemption would pose serious detrimental effects to the unemployment compensation fund and scheduling of work, it was incumbent upon the state to show that no alternative means of regulations would address such detrimental effects without infringing religious liberty. The state, however, did not discharge this burden. The Court thus carved out for Sherbert an exemption from the Saturday work requirement that caused her disqualification from claiming the unemployment benefits. The Court reasoned that upholding the denial of Sherbert’s benefits would force her to choose between receiving benefits and following her religion. This choice placed "the same kind of burden upon the free exercise of religion as would a fine imposed against (her) for her Saturday worship." This germinal case of Sherbert firmly established the exemption doctrine, 175 viz: It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some ‘compelling state interest’ intervenes.

Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as Braunfeld), the Court moved from the doctrine that inadvertent or incidental interferences with religion raise no problem under the Free Exercise Clause to the doctrine that such interferences violate the Free Exercise Clause in the absence of a compelling state interest - the highest level of constitutional scrutiny short of a holding of a per se violation. Thus, the problem posed by the belief-action test and the deliberate-inadvertent distinction was addressed.176 Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale in Sherbert continued to be applied. In Thomas v. Review Board177 and Hobbie v. Unemployment Appeals Division,178 for example, the Court reiterated the exemption doctrine and held that in the absence of a compelling justification, a state could not withhold unemployment compensation from an employee who resigned or was discharged due to unwillingness to depart from religious practices and beliefs that conflicted with job requirements. But not every governmental refusal to allow an exemption from a regulation which burdens a sincerely held religious belief has been invalidated, even though strict or heightened scrutiny is applied. In United States v. Lee,179 for instance, the Court using strict scrutiny and referring to Thomas, upheld the federal government’s refusal to exempt Amish employers who requested for exemption from paying social security taxes on wages on the ground of religious beliefs. The Court held that "(b)ecause the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax."180 It reasoned that unlike in Sherbert, an exemption would significantly impair government’s achievement of its objective - "the fiscal vitality of the social security system;" mandatory participation is indispensable to attain this objective. The Court noted that if an exemption were made, it would be hard to justify not allowing a similar exemption from general federal taxes where the taxpayer argues that his religious beliefs require him to reduce or eliminate his payments so that he will not contribute to the government’s war-related activities, for example. The strict scrutiny and compelling state interest test significantly increased the degree of protection afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a compelling secular justification was necessary to uphold public policies that collided with religious practices. Although the members of the Court often disagreed over which governmental interests should be considered compelling, thereby producing dissenting and separate opinions in religious conduct cases, this general test established a strong presumption in favor of the free exercise of religion.181 Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder 182 where the Court upheld the religious practice of the Old Order Amish faith over the state’s compulsory high school attendance law. The Amish parents in this case did not permit secular education of their children beyond the eighth grade. Chief Justice Burger, writing for the majority, held, viz: It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. Long before there was general acknowledgement of the need for universal education, the Religion Clauses had specially and firmly fixed the right of free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of any religion. The values underlying these two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance. . . The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. . . . . . our decisions have rejected the idea that that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal government in the exercise of its delegated powers . . . But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability. . . .This case, therefore, does not become easier because respondents were convicted for their "actions" in refusing to send their children to the public high school; in this context belief and action cannot be neatly confined in logic-tight compartments. . . 183

The onset of the 1990s, however, saw a major setback in the protection afforded by the Free Exercise Clause. In Employment Division, Oregon Department of Human Resources v. Smith,184 the sharply divided Rehnquist Court dramatically departed from the heightened scrutiny and compelling justification approach and imposed serious limits on the scope of protection of religious freedom afforded by the First Amendment. In this case, the well-established practice of the Native American Church, a sect outside the JudeoChristian mainstream of American religion, came in conflict with the state’s interest in prohibiting the use of illicit drugs. Oregon’s controlled substances statute made the possession of peyote a criminal offense. Two members of the church, Smith and Black, worked as drug rehabilitation counselors for a private social service agency in Oregon. Along with other church members, Smith and Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony practiced by Native Americans for hundreds of years. The social service agency fired Smith and Black citing their use of peyote as "jobrelated misconduct". They applied for unemployment compensation, but the Oregon Employment Appeals Board denied their application as they were discharged for jobrelated misconduct. Justice Scalia, writing for the majority, ruled that "if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid law, the First Amendment has not been offended." In other words, the Free Exercise Clause would be offended only if a particular religious practice were singled out for proscription. The majority opinion relied heavily on the Reynolds case and in effect, equated Oregon’s drug prohibition law with the anti-polygamy statute in Reynolds. The relevant portion of the majority opinion held, viz: We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation. Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law. . . We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development." . . .To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs except where the State’s interest is "compelling" - permitting him, by virtue of his beliefs, "to become a law unto himself," . . . - contradicts both constitutional tradition and common sense. Justice O’Connor wrote a concurring opinion pointing out that the majority’s rejection of the compelling governmental interest test was the most controversial part of the decision. Although she concurred in the result that the Free Exercise Clause had not been offended, she sharply criticized the majority opinion as a dramatic departure "from well-settled First Amendment jurisprudence. . . and . . . (as) incompatible with our Nation’s fundamental commitment to religious liberty." This portion of her concurring opinion was supported by Justices Brennan, Marshall and Blackmun who dissented from the Court’s decision. Justice O’Connor asserted that "(t)he compelling state interest test effectuates the First Amendment’s command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling government interest ‘of the highest order’." Justice Blackmun registered a separate dissenting opinion, joined by Justices Brennan and Marshall. He charged the majority with "mischaracterizing" precedents and "overturning. . . settled law concerning the Religion Clauses of our Constitution." He pointed out that the Native American Church restricted and supervised the sacramental use of peyote. Thus, the state had no significant health or safety justification for regulating the sacramental drug use. He also observed that Oregon had not attempted to prosecute Smith or Black, or any Native Americans, for that matter, for the sacramental use of peyote. In conclusion, he said that "Oregon’s interest in enforcing its drug laws against religious use of peyote (was) not sufficiently compelling to outweigh respondents’ right to the free exercise of their religion." The Court went back to the Reynolds and Gobitis doctrine in Smith. The Court’s standard in Smith virtually eliminated the requirement that the government justify with a compelling state interest the burdens on religious exercise imposed by laws neutral toward religion. The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow understanding of free exercise jurisprudence.185 First, the First amendment was intended to protect minority religions from the tyranny of the religious and political majority. A deliberate regulatory interference with minority religious freedom is the worst form of this tyranny. But regulatory interference with a minority religion as a result of ignorance or sensitivity of the religious and political majority is no less an interference with the minority’s religious freedom. If the regulation had instead restricted the majority’s religious

practice, the majoritarian legislative process would in all probability have modified or rejected the regulation. Thus, the imposition of the political majority’s non-religious objectives at the expense of the minority’s religious interests implements the majority’s religious viewpoint at the expense of the minority’s. Second, government impairment of religious liberty would most often be of the inadvertent kind as in Smith considering the political culture where direct and deliberate regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it would be left almost meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies common sense. The state should not be allowed to interfere with the most deeply held fundamental religious convictions of an individual in order to pursue some trivial state economic or bureaucratic objective. This is especially true when there are alternative approaches for the state to effectively pursue its objective without serious inadvertent impact on religion.186 Thus, the Smith decision has been criticized not only for increasing the power of the state over religion but as discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack legislative clout,187 contrary to the original theory of the First Amendment.188 Undeniably, claims for judicial exemption emanate almost invariably from relatively politically powerless minority religions and Smith virtually wiped out their judicial recourse for exemption.189 Thus, the Smith decision elicited much negative public reaction especially from the religious community, and commentaries insisted that the Court was allowing the Free Exercise Clause to disappear.190 So much was the uproar that a majority in Congress was convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited government at all levels from substantially burdening a person’s free exercise of religion, even if such burden resulted from a generally applicable rule, unless the government could demonstrate a compelling state interest and the rule constituted the least restrictive means of furthering that interest.191 RFRA, in effect, sought to overturn the substance of the Smith ruling and restore the status quo prior to Smith. Three years after the RFRA was enacted, however, the Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v. Flores.192 The Court ruled that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." It emphasized the primacy of its role as interpreter of the Constitution and unequivocally rejected, on broad institutional grounds, a direct congressional challenge of final judicial authority on a question of constitutional interpretation. After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah193 which was ruled consistent with the Smith doctrine. This case involved animal sacrifice of the Santeria, a blend of Roman Catholicism and West African religions brought to the Carribean by East African slaves. An ordinance made it a crime to "unnecessarily kill, torment, torture, or mutilate an animal in public or private ritual or ceremony not for the primary purpose of food consumption." The ordinance came as a response to the local concern over the sacrificial practices of the Santeria. Justice Kennedy, writing for the majority, carefully pointed out that the questioned ordinance was not a generally applicable criminal prohibition, but instead singled out practitioners of the Santeria in that it forbade animal slaughter only insofar as it took place within the context of religious rituals. It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely protected, religious speech and proselytizing are highly protected but subject to restraints applicable to non-religious speech, and unconventional religious practice receives less protection; nevertheless conduct, even if its violates a law, could be accorded protection as shown in Wisconsin.194 B. Establishment Clause The Court’s first encounter with the Establishment Clause was in the 1947 case of Everson v. Board of Education.195Prior cases had made passing reference to the Establishment Clause196 and raised establishment questions but were decided on other grounds.197 It was in the Everson case that the U.S. Supreme Court adopted Jefferson’s metaphor of "a wall of separation between church and state" as encapsulating the meaning of the Establishment Clause. The often and loosely used phrase "separation of church and state" does not appear in the U.S. Constitution. It became part of U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United States198quoted Jefferson’s famous letter of 1802 to the Danbury Baptist Association in narrating the history of the religion clauses, viz: Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the Government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.199 (emphasis supplied)

Chief Justice Waite, speaking for the majority, then added, "(c)oming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured."200 The interpretation of the Establishment Clause has in large part been in cases involving education, notably state aid to private religious schools and prayer in public schools.201 In Everson v. Board of Education, for example, the issue was whether a New Jersey local school board could reimburse parents for expenses incurred in transporting their children to and from Catholic schools. The reimbursement was part of a general program under which all parents of children in public schools and nonprofit private schools, regardless of religion, were entitled to reimbursement for transportation costs. Justice Hugo Black, writing for a sharply divided Court, justified the reimbursements on the child benefit theory, i.e., that the school board was merely furthering the state’s legitimate interest in getting children "regardless of their religion, safely and expeditiously to and from accredited schools." The Court, after narrating the history of the First Amendment in Virginia, interpreted the Establishment Clause, viz: The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can 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 in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State."202 The Court then ended the opinion, viz: The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.203 By 1971, the Court integrated the different elements of the Court’s Establishment Clause jurisprudence that evolved in the 1950s and 1960s and laid down a threepronged test in Lemon v. Kurtzman204 in determining the constitutionality of policies challenged under the Establishment Clause. This case involved a Pennsylvania statutory program providing publicly funded reimbursement for the cost of teachers’ salaries, textbooks, and instructional materials in secular subjects and a Rhode Island statute providing salary supplements to teachers in parochial schools. The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the Establishment Clause. "First, the statute must have a secular legislative purpose; second, its primary or principal effect must be one that neither advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster ‘an excessive entanglement with religion.’ (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970])" (emphasis supplied)205Using this test, the Court held that the Pennsylvania statutory program and Rhode Island statute were unconstitutional as fostering excessive entanglement between government and religion. The most controversial of the education cases involving the Establishment Clause are the school prayer decisions. "Few decisions of the modern Supreme Court have been criticized more intensely than the school prayer decisions of the early 1960s."206 In the 1962 case of Engel v. Vitale,207 the Court invalidated a New York Board of Regents policy that established the voluntary recitation of a brief generic prayer by children in the public schools at the start of each school day. The majority opinion written by Justice Black stated that "in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government." In fact, history shows that this very practice of establishing governmentally composed prayers for religious services was one of the reasons that caused many of the early colonists to leave England and seek religious freedom in America. The Court called to mind that the first and most immediate purpose of the Establishment Clause rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The following year, the Engel decision was reinforced in Abington School District v. Schempp208 and Murray v. Curlett209 where the Court struck down the practice of Bible reading and the recitation of the Lord’s prayer in the Pennsylvania and Maryland schools. The Court held that to withstand the strictures of the Establishment Clause, a

statute must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. It reiterated, viz: The wholesome ‘neutrality’ of which this Court’s cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State of Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state.210 The school prayer decisions drew furious reactions. Religious leaders and conservative members of Congress and resolutions passed by several state legislatures condemned these decisions.211 On several occasions, constitutional amendments have been introduced in Congress to overturn the school prayer decisions. Still, the Court has maintained its position and has in fact reinforced it in the 1985 case of Wallace v. Jaffree212 where the Court struck down an Alabama law that required public school students to observe a moment of silence "for the purpose of meditation or voluntary prayer" at the start of each school day. Religious instruction in public schools has also pressed the Court to interpret the Establishment Clause. Optional religious instruction within public school premises and instructional time were declared offensive of the Establishment Clause in the 1948 case of McCollum v. Board of Education,213 decided just a year after the seminal Everson case. In this case, interested members of the Jewish, Roman Catholic and a few Protestant faiths obtained permission from the Board of Education to offer classes in religious instruction to public school students in grades four to nine. Religion classes were attended by pupils whose parents signed printed cards requesting that their children be permitted to attend. The classes were taught in three separate groups by Protestant teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty minutes during regular class hours in the regular classrooms of the school building. The religious teachers were employed at no expense to the school authorities but they were subject to the approval and supervision of the superintendent of schools. Students who did not choose to take religious instruction were required to leave their classrooms and go to some other place in the school building for their secular studies while those who were released from their secular study for religious instruction were required to attend the religious classes. The Court held that the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education amounted to a prohibited use of tax-established and tax-supported public school system to aid religious groups spread their faith. The Court rejected the claim that the Establishment Clause only prohibited government preference of one religion over another and not an impartial governmental assistance of all religions. In Zorach v. Clauson,214 however, the Court upheld released time programs allowing students in public schools to leave campus upon parental permission to attend religious services while other students attended study hall. Justice Douglas, the writer of the opinion, stressed that "(t)he First Amendment does not require that in every and all respects there shall be a separation of Church and State." The Court distinguished Zorach from McCollum, viz: In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. . . We follow the McCollum case. But we cannot expand it to cover the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion.215 In the area of government displays or affirmations of belief, the Court has given leeway to religious beliefs and practices which have acquired a secular meaning and have become deeply entrenched in history. For instance, in McGowan v. Maryland,216 the Court upheld laws that prohibited certain businesses from operating on Sunday despite the obvious religious underpinnings of the restrictions. Citing the secular purpose of the Sunday closing laws and treating as incidental the fact that this day of rest happened to be the day of worship for most Christians, the Court held, viz: It is common knowledge that the first day of the week has come to have special significance as a rest day in this country. People of all religions and people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for later sleeping, for passive and active entertainments, for dining out, and the like.217

In the 1983 case of Marsh v. Chambers,218 the Court refused to invalidate Nebraska’s policy of beginning legislative sessions with prayers offered by a Protestant chaplain retained at the taxpayers’ expense. The majority opinion did not rely on the Lemon test and instead drew heavily from history and the need for accommodation of popular religious beliefs, viz: In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among the people of this country. As Justice Douglas observed, "(w)e are a religious people whose institutions presuppose a Supreme Being." (Zorach c. Clauson, 343 US 306, 313 [1952])219 (emphasis supplied) Some view the Marsh ruling as a mere aberration as the Court would "inevitably be embarrassed if it were to attempt to strike down a practice that occurs in nearly every legislature in the United States, including the U.S. Congress."220 That Marsh was not an aberration is suggested by subsequent cases. In the 1984 case of Lynch v. Donnelly,221 the Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4 decision, the majority opinion hardly employed the Lemon test and again relied on history and the fact that the creche had become a "neutral harbinger of the holiday season" for many, rather than a symbol of Christianity. The Establishment Clause has also been interpreted in the area of tax exemption. By tradition, church and charitable institutions have been exempt from local property taxes and their income exempt from federal and state income taxes. In the 1970 case of Walz v. Tax Commission,222 the New York City Tax Commission’s grant of property tax exemptions to churches as allowed by state law was challenged by Walz on the theory that this required him to subsidize those churches indirectly. The Court upheld the law stressing its neutrality, viz: It has not singled out one particular church or religious group or even churches as such; rather, it has granted exemptions to all houses of religious worship within a broad class of property owned by non-profit, quasi-public corporations . . . The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest.223 The Court added that the exemption was not establishing religion but "sparing the exercise of religion from the burden of property taxation levied on private profit institutions"224 and preventing excessive entanglement between state and religion. At the same time, the Court acknowledged the long-standing practice of religious tax exemption and the Court’s traditional deference to legislative bodies with respect to the taxing power, viz: (f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise . . . this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference.225 (emphasis supplied) C. Strict Neutrality v. Benevolent Neutrality To be sure, the cases discussed above, while citing many landmark decisions in the religious clauses area, are but a small fraction of the hundreds of religion clauses cases that the U.S. Supreme Court has passed upon. Court rulings contrary to or making nuances of the above cases may be cited. Professor McConnell poignantly recognizes this, viz: Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the legislature in daily prayers (Marsh v. Chambers, 463 US783, 792-93[1983]), but unconstitutional for a state to set aside a moment of silence in the schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a state to require employers to accommodate their employees’ work schedules to their sabbath observances (Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but constitutionally mandatory for a state to require employers to pay workers compensation when the resulting inconsistency between work and sabbath leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is constitutional for the government to give money to religiously-affiliated organizations to teach adolescents about proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is

constitutional for the government to provide religious school pupils with books (Board of Education v. Allen, 392 US 236, 238 [1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board of Education, 330 US 1, 17 [1947]), but not from school to a museum on a field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for state-mandated standardized tests (Committee for Pub. Educ. and Religious Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.226 But the purpose of the overview is not to review the entirety of the U.S. religion clause jurisprudence nor to extract the prevailing case law regarding particular religious beliefs or conduct colliding with particular government regulations. Rather, the cases discussed above suffice to show that, as legal scholars observe, this area of jurisprudence has demonstrated two main standards used by the Court in deciding religion clause cases: separation (in the form of strict separation or the tamer version of strict neutrality or separation) and benevolent neutrality or accommodation. The weight of current authority, judicial and in terms of sheer volume, appears to lie with the separationists, strict or tame.227 But the accommodationists have also attracted a number of influential scholars and jurists.228 The two standards producing two streams of jurisprudence branch out respectively from the history of the First Amendment in England and the American colonies and climaxing in Virginia as narrated in this opinion and officially acknowledged by the Court in Everson, and from American societal life which reveres religion and practices age-old religious traditions. Stated otherwise, separation - strict or tame - protects the principle of church-state separation with a rigid reading of the principle while benevolent neutrality protects religious realities, tradition and established practice with a flexible reading of the principle.229 The latter also appeals to history in support of its position, viz: The opposing school of thought argues that the First Congress intended to allow government support of religion, at least as long as that support did not discriminate in favor of one particular religion. . . the Supreme Court has overlooked many important pieces of history. Madison, for example, was on the congressional committee that appointed a chaplain, he declared several national days of prayer and fasting during his presidency, and he sponsored Jefferson’s bill for punishing Sabbath breakers; moreover, while president, Jefferson allowed federal support of religious missions to the Indians. . . And so, concludes one recent book, ‘there is no support in the Congressional records that either the First Congress, which framed the First Amendment, or its principal author and sponsor, James Madison, intended that Amendment to create a state of complete independence between religion and government. In fact, the evidence in the public documents goes the other way.230 (emphasis supplied) To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room for accommodation, less than twenty-four hours after Congress adopted the First Amendment’s prohibition on laws respecting an establishment of religion, Congress decided to express its thanks to God Almighty for the many blessings enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a national day of Thanksgiving and Prayer. Only two members of Congress opposed the resolution, one on the ground that the move was a "mimicking of European customs, where they made a mere mockery of thanksgivings", the other on establishment clause concerns. Nevertheless, the salutary effect of thanksgivings throughout Western history was acknowledged and the motion was passed without further recorded discussion.231 Thus, accommodationists also go back to the framers to ascertain the meaning of the First Amendment, but prefer to focus on acts rather than words. Contrary to the claim of separationists that rationalism pervaded America in the late 19th century and that America was less specifically Christian during those years than at any other time before or since,232 accommodationaists claim that American citizens at the time of the Constitution’s origins were a remarkably religious people in particularly Christian terms.233 The two streams of jurisprudence - separationist or accommodationist - are anchored on a different reading of the "wall of separation." The strict separtionist view holds that Jefferson meant the "wall of separation" to protect the state from the church. Jefferson was a man of the Enlightenment Era of the eighteenth century, characterized by the rationalism and anticlericalism of that philosophic bent.234 He has often been regarded as espousing Deism or the rationalistic belief in a natural religion and natural law divorced from its medieval connection with divine law, and instead adhering to a secular belief in a universal harmony.235 Thus, according to this Jeffersonian view, the Establishment Clause being meant to protect the state from the church, the state’s hostility towards religion allows no interaction between the two.236 In fact, when Jefferson became President, he refused to proclaim fast or thanksgiving days on the ground that these are religious exercises and the Constitution prohibited the government from intermeddling with religion.237 This approach erects an absolute barrier to formal interdependence of religion and state. Religious institutions could not receive aid, whether direct or indirect, from the state. Nor could

the state adjust its secular programs to alleviate burdens the programs placed on believers.238 Only the complete separation of religion from politics would eliminate the formal influence of religious institutions and provide for a free choice among political views thus a strict "wall of separation" is necessary.239 Strict separation faces difficulties, however, as it is deeply embedded in history and contemporary practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return for huge amounts of mostly indirect aid from religion. Thus, strict separationists are caught in an awkward position of claiming a constitutional principle that has never existed and is never likely to.240 A tamer version of the strict separationist view, the strict neutrality or separationist view is largely used by the Court, showing the Court’s tendency to press relentlessly towards a more secular society.241 It finds basis in the Everson case where the Court declared that Jefferson’s "wall of separation" encapsulated the meaning of the First Amendment but at the same time held that the First Amendment "requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them." (emphasis supplied)242 While the strict neutrality approach is not hostile to religion, it is strict in holding that religion may not be used as a basis for classification for purposes of governmental action, whether the action confers rights or privileges or imposes duties or obligations. Only secular criteria may be the basis of government action. It does not permit, much less require, accommodation of secular programs to religious belief.243 Professor Kurland wrote, viz: The thesis proposed here as the proper construction of the religion clauses of the first amendment is that the freedom and separation clauses should be read as a single precept that government cannot utilize religion as a standard for action or inaction because these clauses prohibit classification in terms of religion either to confer a benefit or to impose a burden.244 The Court has repeatedly declared that religious freedom means government neutrality in religious matters and the Court has also repeatedly interpreted this policy of neutrality to prohibit government from acting except for secular purposes and in ways that have primarily secular effects.245 Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow any form of prayer, spoken or silent, in the public schools as in Engel and Schempp.246 The McCollum case prohibiting optional religious instruction within public school premises during regular class hours also demonstrates strict neutrality. In these education cases, the Court refused to uphold the government action as they were based not on a secular but on a religious purpose. Strict neutrality was also used in Reynolds and Smith which both held that if government acts in pursuit of a generally applicable law with a secular purpose that merely incidentally burdens religious exercise, the First Amendment has not been offended. However, if the strict neutrality standard is applied in interpreting the Establishment Clause, it could de facto void religious expression in the Free Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion in Schempp, strict neutrality could lead to "a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious" which is prohibited by the Constitution.247 Professor Laurence Tribe commented in his authoritative treatise, viz: To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause. The Framers, whatever specific applications they may have intended, clearly envisioned religion as something special; they enacted that vision into law by guaranteeing the free exercise of religion but not, say, of philosophy or science. The strict neutrality approach all but erases this distinction. Thus it is not surprising that the Supreme Court has rejected strict neutrality, permitting and sometimes mandating religious classifications.248

the wall is meant to protect the church from the state,251 i.e., the "garden" of the church must be walled in for its own protection from the "wilderness" of the world252 with its potential for corrupting those values so necessary to religious commitment.253 Howe called this the "theological" or "evangelical" rationale for church-state separation while the wall espoused by "enlightened" statesmen such as Jefferson and Madison, was a "political" rationale seeking to protect politics from intrusions by the church.254 But it has been asserted that this contrast between the Williams and Jeffersonian positions is more accurately described as a difference in kinds or styles of religious thinking, not as a conflict between "religious" and "secular (political)"; the religious style was biblical and evangelical in character while the secular style was grounded in natural religion, more generic and philosophical in its religious orientation.255 The Williams wall is, however, breached for the church is in the state and so the remaining purpose of the wall is to safeguard religious liberty. Williams’ view would therefore allow for interaction between church and state, but is strict with regard to state action which would threaten the integrity of religious commitment.256 His conception of separation is not total such that it provides basis for certain interactions between church and state dictated by apparent necessity or practicality.257 This "theological" view of separation is found in Williams’ writings, viz: . . . when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made his garden a wilderness, as this day. And that therefore if He will eer please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world. . .258 Chief Justice Burger spoke of benevolent neutrality in Walz, viz: The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.259 (emphasis supplied) The Zorach case expressed the doctrine of accommodation,260 viz: The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one or the other. That is the common sense of the matter. Otherwise, the state and religion would be aliens to each other - hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths- these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: ‘God save the United States and this Honorable Court. xxx

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The separationist approach, whether strict or tame, is caught in a dilemma because while the Jeffersonian wall of separation "captures the spirit of the American ideal of church-state separation", in real life church and state are not and cannot be totally separate.249 This is all the more true in contemporary times when both the government and religion are growing and expanding their spheres of involvement and activity, resulting in the intersection of government and religion at many points.250

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. . . When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. . . But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen their effective scope of religious influence.261 (emphases supplied)

Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent neutrality which gives room for accommodation is buttressed by a different view of the "wall of separation" associated with Williams, founder of the Rhode Island colony. In Mark DeWolfe Howe’s classic, The Garden and the Wilderness, he asserts that to the extent the Founders had a wall of separation in mind, it was unlike the Jeffersonian wall that is meant to protect the state from the church; instead,

Benevolent neutrality is congruent with the sociological proposition that religion serves a function essential to the survival of society itself, thus there is no human society without one or more ways of performing the essential function of religion. Although for some individuals there may be no felt need for religion and thus it is optional or even dispensable, for society it is not, which is why there is no human society without one or more ways of performing the essential function of religion.

Even in ostensibly atheistic societies, there are vigorous underground religion(s) and surrogate religion(s) in their ideology.262 As one sociologist wrote: It is widely held by students of society that there are certain functional prerequisites without which society would not continue to exist. At first glance, this seems to be obvious - scarcely more than to say that an automobile could not exist, as a going system, without a carburetor. . . Most writers list religion among the functional prerequisites.263 Another noted sociologist, Talcott Parsons, wrote: "There is no known human society without something which modern social scientists would classify as a religion…Religion is as much a human universal as language."264 Benevolent neutrality thus recognizes that religion plays an important role in the public life of the United States as shown by many traditional government practices which, to strict neutrality, pose Establishment Clause questions. Among these are the inscription of "In God We Trust" on American currency, the recognition of America as "one nation under God" in the official pledge of allegiance to the flag, the Supreme Court’s time-honored practice of opening oral argument with the invocation "God save the United States and this honorable Court," and the practice of Congress and every state legislature of paying a chaplain, usually of a particular Protestant denomination to lead representatives in prayer.265 These practices clearly show the preference for one theological viewpoint -the existence of and potential for intervention by a god over the contrary theological viewpoint of atheism. Church and government agencies also cooperate in the building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug addiction, in foreign aid and other government activities with strong moral dimension.266 The persistence of these de facto establishments are in large part explained by the fact that throughout history, the evangelical theory of separation, i.e., Williams’ wall, has demanded respect for these de facto establishments.267 But the separationists have a different explanation. To characterize these as de jure establishments according to the principle of the Jeffersonian wall, the U.S. Supreme Court, the many dissenting and concurring opinions explain some of these practices as "‘de minimis’ instances of government endorsement or as historic governmental practices that have largely lost their religious significance or at least have proven not to lead the government into further involvement with religion.268 With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances. Accommodations are government policies that take religion specifically into account not to promote the government’s favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion. As Justice Brennan explained, the "government [may] take religion into account…to exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may flourish."269 (emphasis supplied) Accommodation is forbearance and not alliance. it does not reflect agreement with the minority, but respect for the conflict between the temporal and spiritual authority in which the minority finds itself.270 Accommodation is distinguished from strict neutrality in that the latter holds that government should base public policy solely on secular considerations, without regard to the religious consequences of its actions. The debate between accommodation and strict neutrality is at base a question of means: "Is the freedom of religion best achieved when the government is conscious of the effects of its action on the various religious practices of its people, and seeks to minimize interferences with those practices? Or is it best advanced through a policy of ‘religious blindness’ - keeping government aloof from religious practices and issues?" An accommodationist holds that it is good public policy, and sometimes constitutionally required, for the state to make conscious and deliberate efforts to avoid interference with religious freedom. On the other hand, the strict neutrality adherent believes that it is good public policy, and also constitutionally required, for the government to avoid religion-specific policy even at the cost of inhibiting religious exercise.271 There are strong and compelling reasons, however, to take the accommodationist position rather than the strict neutrality position. First, the accommodationist interpretation is most consistent with the language of the First Amendment. The religion clauses contain two parallel provisions, both specifically directed at "religion." The government may not "establish" religion and neither may government "prohibit" it. Taken together, the religion clauses can be read most plausibly as warding off two equal and opposite threats to religious freedom - government action that promotes the (political) majority’s favored brand of religion and government action that impedes religious practices not favored by the majority. The substantive end in view is the

preservation of the autonomy of religious life and not just the formal process value of ensuring that government does not act on the basis of religious bias. On the other hand, strict neutrality interprets the religion clauses as allowing government to do whatever it desires to or for religion, as long as it does the same to or for comparable secular entities. Thus, for example, if government prohibits all alcoholic consumption by minors, it can prohibit minors from taking part in communion. Paradoxically, this view would make the religion clauses violate the religion clauses, so to speak, since the religion clauses single out religion by name for special protection. Second, the accommodationist position best achieves the purposes of the First Amendment. The principle underlying the First Amendment is that freedom to carry out one’s duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Although inalienable, it is necessarily limited by the rights of others, including the public right of peace and good order. Nevertheless it is a substantive right and not merely a privilege against discriminatory legislation. The accomplishment of the purpose of the First Amendment requires more than the "religion blindness" of strict neutrality. With the pervasiveness of government regulation, conflicts with religious practices become frequent and intense. Laws that are suitable for secular entities are sometimes inappropriate for religious entities, thus the government must make special provisions to preserve a degree of independence for religious entities for them to carry out their religious missions according to their religious beliefs. Otherwise, religion will become just like other secular entities subject to pervasive regulation by majoritarian institutions. Third, the accommodationist interpretation is particularly necessary to protect adherents of minority religions from the inevitable effects of majoritarianism, which include ignorance and indifference and overt hostility to the minority. In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not infrequently, they come into conflict with the religious scruples of those holding different world views, even in the absence of a deliberate intent to interfere with religious practice. At times, this effect is unavoidable as a practical matter because some laws are so necessary to the common good that exceptions are intolerable. But in other instances, the injury to religious conscience is so great and the advancement of public purposes so small or incomparable that only indifference or hostility could explain a refusal to make exemptions. Because of plural traditions, legislators and executive officials are frequently willing to make such exemptions when the need is brought to their attention, but this may not always be the case when the religious practice is either unknown at the time of enactment or is for some reason unpopular. In these cases, a constitutional interpretation that allows accommodations prevents needless injury to the religious consciences of those who can have an influence in the legislature; while a constitutional interpretation that requires accommodations extends this treatment to religious faiths that are less able to protect themselves in the political arena. Fourth, the accommodationist position is practical as it is a commonsensical way to deal with the various needs and beliefs of different faiths in a pluralistic nation. Without accommodation, many otherwise beneficial laws would interfere severely with religious freedom. Aside from laws against serving alcoholic beverages to minors conflicting with celebration of communion, regulations requiring hard hats in construction areas can effectively exclude Amish and Sikhs from the workplace, or employment anti-discrimination laws can conflict with the Roman Catholic male priesthood, among others. Exemptions from such laws are easy to craft and administer and contribute much to promoting religious freedom at little cost to public policy. Without exemptions, legislature would be frequently forced to choose between violating religious conscience of a segment of the population or dispensing with legislation it considers beneficial to society as a whole. Exemption seems manifestly more reasonable than either of the alternative: no exemption or no law.272 Benevolent neutrality gives room for different kinds of accommodation: those which are constitutionally compelled, i.e., required by the Free Exercise Clause; and those which are discretionary or legislative, i.e., and those not required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause.273 Some Justices of the Supreme Court have also used the term accommodation to describe government actions that acknowledge or express prevailing religious sentiments of the community such as display of a religious symbol on public property or the delivery of a prayer at public ceremonial events.274 Stated otherwise, using benevolent neutrality as a standard could result to three situations of accommodation: those where accommodation is required, those where it is permissible, and those where it is prohibited. In the first situation, accommodation is required to preserve free exercise protections and not unconstitutionally infringe on religious liberty or create penalties for religious freedom. Contrary to the Smith declaration that free exercise exemptions are "intentional government advancement", these exemptions merely relieve the prohibition on the free exercise thus allowing the burdened religious adherent to be left alone. The state must create exceptions to laws of general applicability when these laws threaten religious convictions or practices in the absence of a compelling state interest.275 By allowing such exemptions, the Free Exercise Clause does not give believers the right or privilege to choose for themselves to override socially-prescribed decision; it allows them to obey spiritual rather than temporal authority 276 for those who seriously invoke the Free Exercise Clause claim to be fulfilling a solemn duty. Religious freedom is a matter less of rights than duties; more precisely, it is a matter of rights derived from duties. To deny a person or a community the right to act upon such a duty can be justified only by appeal to a yet more compelling duty. Of course, those

denied will usually not find the reason for the denial compelling. "Because they may turn out to be right about the duty in question, and because, even if they are wrong, religion bears witness to that which transcends the political order, such denials should be rare and painfully reluctant."277 The Yoder case is an example where the Court held that the state must accommodate the religious beliefs of the Amish who objected to enrolling their children in high school as required by law. The Sherbert case is another example where the Court held that the state unemployment compensation plan must accommodate the religious convictions of Sherbert.278 In these cases of "burdensome effect", the modern approach of the Court has been to apply strict scrutiny, i.e., to declare the burden as permissible, the Court requires the state to demonstrate that the regulation which burdens the religious exercise pursues a particularly important or compelling government goal through the least restrictive means. If the state’s objective could be served as well or almost as well by granting an exemption to those whose religious beliefs are burdened by the regulation, such an exemption must be given.279This approach of the Court on "burdensome effect" was only applied since the 1960s. Prior to this time, the Court took the separationist view that as long as the state was acting in pursuit of non-religious ends and regulating conduct rather than pure religious beliefs, the Free Exercise Clause did not pose a hindrance such as in Reynolds. 280 In the second situation where accommodation is permissible, the state may, but is not required to, accommodate religious interests. The Walz case illustrates this situation where the Court upheld the constitutionality of tax exemption given by New York to church properties, but did not rule that the state was required to provide tax exemptions. The Court declared that "(t)he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause."281 The Court held that New York could have an interest in encouraging religious values and avoiding threats to those values through the burden of property taxes. Other examples are the Zorach case allowing released time in public schools and Marsh allowing payment of legislative chaplains from public funds. Finally, in the situation where accommodation is prohibited, establishment concerns prevail over potential accommodation interests. To say that there are valid exemptions buttressed by the Free Exercise Clause does not mean that all claims for free exercise exemptions are valid.282 An example where accommodation was prohibited is McCollum where the Court ruled against optional religious instruction in the public school premises.283 In effect, the last situation would arrive at a strict neutrality conclusion. In the first situation where accommodation is required, the approach follows this basic framework: If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the burden shifts to the government to demonstrate that the law or practice is necessary to the accomplishment of some important (or ‘compelling’) secular objective and that it is the least restrictive means of achieving that objective. If the plaintiff meets this burden and the government does not, the plaintiff is entitled to exemption from the law or practice at issue. In order to be protected, the claimant’s beliefs must be ‘sincere’, but they need not necessarily be consistent, coherent, clearly articulated, or congruent with those of the claimant’s religious denomination. ‘Only beliefs rooted in religion are protected by the Free Exercise Clause’; secular beliefs, however sincere and conscientious, do not suffice.284 In other words, a three-step process (also referred to as the "two-step balancing process" supra when the second and third steps are combined) as in Sherbert is followed in weighing the state’s interest and religious freedom when these collide. Three questions are answered in this process. First, "(h)as the statute or government action created a burden on the free exercise of religion?" The courts often look into the sincerity of the religious belief, but without inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring about its truth as held in Ballard and Cantwell. The sincerity of the claimant’s belief is ascertained to avoid the mere claim of religious beliefs to escape a mandatory regulation. As evidence of sincerity, the U.S. Supreme Court has considered historical evidence as in Wisconsin where the Amish people had held a long-standing objection to enrolling their children in ninth and tenth grades in public high schools. In another case, Dobkin v. District of Columbia,285 the Court denied the claim of a party who refused to appear in court on Saturday alleging he was a Sabbatarian, but the Court noted that he regularly conducted business on Saturday. Although it is true that the Court might erroneously deny some claims because of a misjudgment of sincerity, this is not as argument to reject all claims by not allowing accommodation as a rule. There might be injury to the particular claimant or to his religious community, but for the most part, the injustice is done only in the particular case.286 Aside from the sincerity, the court may look into the centrality of those beliefs, assessing them not on an objective basis but in terms of the opinion and belief of the person seeking exemption. In Wisconsin, for example, the Court noted that the Amish people’s convictions against becoming involved in public high schools were central to their way of life and faith. Similarly, in Sherbert, the Court

concluded that the prohibition against Saturday work was a "cardinal principle."287 Professor Lupu puts to task the person claiming exemption, viz: On the claimant’s side, the meaning and significance of the relevant religious practice must be demonstrated. Religious command should outweigh custom, individual conscience should count for more than personal convenience, and theological principle should be of greater significance than institutional ease. Sincerity matters, (footnote omitted) and longevity of practice - both by the individual and within the individual’s religious tradition - reinforces sincerity. Most importantly, the law of free exercise must be inclusive and expansive, recognizing non-Christian religions - eastern, Western, aboriginal and otherwise - as constitutionally equal to their Christian counterparts, and accepting of the intensity and scope of fundamentalist creed.288 Second, the court asks: "(i)s there a sufficiently compelling state interest to justify this infringement of religious liberty?" In this step, the government has to establish that its purposes are legitimate for the state and that they are compelling. Government must do more than assert the objectives at risk if exemption is given; it must precisely show how and to what extent those objectives will be undermined if exemptions are granted.289 The person claiming religious freedom, on the other hand, will endeavor to show that the interest is not legitimate or that the purpose, although legitimate, is not compelling compared to infringement of religious liberty. This step involves balancing, i.e., weighing the interest of the state against religious liberty to determine which is more compelling under the particular set of facts. The greater the state’s interests, the more central the religious belief would have to be to overcome it. In assessing the state interest, the court will have to determine the importance of the secular interest and the extent to which that interest will be impaired by an exemption for the religious practice. Should the court find the interest truly compelling, there will be no requirement that the state diminish the effectiveness of its regulation by granting the exemption.290 Third, the court asks: "(h)as the state in achieving its legitimate purposes used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state?"291 The analysis requires the state to show that the means in which it is achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as possible on religious liberties. In Cantwell, for example, the Court invalidated the license requirement for the door-to-door solicitation as it was a forbidden burden on religious liberty, noting that less drastic means of insuring peace and tranquility existed. As a whole, in carrying out the compelling state interest test, the Court should give careful attention to context, both religious and regulatory, to achieve refined judgment.292 In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular government and religious freedom create tensions that make constitutional law on the subject of religious liberty unsettled, mirroring the evolving views of a dynamic society.293 VII. Religion Clauses in the Philippines A. History Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was a union of church and state and Catholicism was the state religion under the Spanish Constitution of 1876. Civil authorities exercised religious functions and the friars exercised civil powers.294 Catholics alone enjoyed the right of engaging in public ceremonies of worship.295 Although the Spanish Constitution itself was not extended to the Philippines, Catholicism was also the established church in our country under the Spanish rule. Catholicism was in fact protected by the Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the offenses in chapter six of the Penal Code entitled "Crimes against Religion and Worship" referred to crimes against the state religion.296The coming of the Americans to our country, however, changed this state-church scheme for with the advent of this regime, the unique American experiment of "separation of church and state" was transported to Philippine soil. Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10, 1898, the American guarantee of religious freedom had been extended to the Philippines. The Treaty provided that "the inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of religion."297 Even the Filipinos themselves guaranteed religious freedom a month later or on January 22, 1899 upon the adoption of the Malolos Constitution of the Philippine Republic under General Emilio Aguinaldo. It provided that "the State recognizes the liberty and equality of all religion (de todos los cultos) in

the same manner as the separation of the Church and State." But the Malolos Constitution and government was short-lived as the Americans took over the reigns of government.298 With the Philippines under the American regime, President McKinley issued Instructions to the Second Philippine Commission, the body created to take over the civil government in the Philippines in 1900. The Instructions guaranteed religious freedom, viz: That no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed ... that no form of religion and no minister of religion shall be forced upon the community or upon any citizen of the Islands, that, on the other hand, no minister of religion shall be interfered with or molested in following his calling.299 This provision was based on the First Amendment of the United States Constitution. Likewise, the Instructions declared that "(t)he separation between State and Church shall be real, entire and absolute."300 Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar to the religious freedom clause in the Instructions, the Philippine Bill of 1902 provided that: No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that free exercise and enjoyment of religious worship, without discrimination or preference, shall forever be allowed. In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902 "caused the complete separation of church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular religious sect."302

language expressive of their historical background, nature, extent and limitations as construed and interpreted by the great statesmen and jurists that vitalized them."306 The 1973 Constitution which superseded the 1935 Constitution contained an almost identical provision on religious freedom in the Bill of Rights in Article IV, Section 8, viz: Sec. 8. No law shall be made respecting an 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. This time, however, the General Provisions in Article XV added in Section 15 that "(t)he separation of church and state shall be inviolable." Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5.307 Likewise, the provision on separation of church and state was included verbatim in the 1987 Constitution, but this time as a principle in Section 6, Article II entitled Declaration of Principles and State Policies. Considering the American origin of the Philippine religion clauses and the intent to adopt the historical background, nature, extent and limitations of the First Amendment of the U.S. Constitution when it was included in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases involving the religion clauses turn to U.S. jurisprudence in explaining the nature, extent and limitations of these clauses. However, a close scrutiny of these cases would also reveal that while U.S. jurisprudence on religion clauses flows into two main streams of interpretation separation and benevolent neutrality - the well-spring of Philippine jurisprudence on this subject is for the most part, benevolent neutrality which gives room for accommodation. B. Jurisprudence

The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using public money or property for religious purposes, viz: That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference, shall forever be allowed; and no religious test shall be required for the exercise of civil or political rights. No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest, preacher, minister, or other religious teachers or dignitary as such. This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which guaranteed independence to the Philippines and authorized the drafting of a Philippine constitution. It enjoined Filipinos to include freedom of religion in drafting their constitution preparatory to the grant of independence. The law prescribed that "(a)bsolute toleration of religious sentiment shall be secured and no inhabitant or religious organization shall be molested in person or property on account of religious belief or mode of worship."303

In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the definition of "religion". "Religion" is derived from the Middle English religioun, from Old French religion, from Latin religio, vaguely referring to a "bond between man and the gods."308 This pre-Christian term for the cult and rituals of pagan Rome was first Christianized in the Latin translation of the Bible.309 While the U.S. Supreme Court has had to take up the challenge of defining the parameters and contours of "religion" to determine whether a non-theistic belief or act is covered by the religion clauses, this Court has not been confronted with the same issue. In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as theistic. In 1937, the Philippine case of Aglipay v. Ruiz310 involving the Establishment Clause, defined "religion" as a "profession of faith to an active power that binds and elevates man to his Creator." Twenty years later, the Court cited the Aglipay definition in American Bible Society v. City of Manila,311 a case involving the Free Exercise clause. The latter also cited the American case of Davis in defining religion, viz: "(i)t has reference to one’s views of his relations to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will." The Beason definition, however, has been expanded in U.S. jurisprudence to include non-theistic beliefs. 1. Free Exercise Clause

The Constitutional Convention then began working on the 1935 Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that "(i)t was the Treaty of Paris of December 10, 1898, which first introduced religious toleration in our country. President McKinley’s Instructions to the Second Philippine Commission reasserted this right which later was incorporated into the Philippine Bill of 1902 and in the Jones Law."304 In accordance with the TydingsMcDuffie Law, the 1935 Constitution provided in the Bill of Rights, Article IV, Section 7, viz: Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. This provision, borrowed from the Jones Law, was readily approved by the Convention.305 In his speech as Chairman of the Committee on Bill of Rights, Delegate Laurel said that modifications in phraseology of the Bill of Rights in the Jones Law were avoided whenever possible because "the principles must remain couched in a

Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one’s religion. The Free Exercise Clause principally guarantees voluntarism, although the Establishment Clause also assures voluntarism by placing the burden of the advancement of religious groups on their intrinsic merits and not on the support of the state.312 In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case of Gerona v. Secretary of Education313 is instructive on the matter, viz: The realm of belief and creed is infinite and limitless bounded only by one’s imagination and thought. So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel.314

The difficulty in interpretation sets in when belief is externalized into speech and action. Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American Bible Society case. In that case, plaintiff American Bible Society was a foreign, non-stock, non-profit, religious missionary corporation which sold bibles and gospel portions of the bible in the course of its ministry. The defendant City of Manila required plaintiff to secure a mayor’s permit and a municipal license as ordinarily required of those engaged in the business of general merchandise under the city’s ordinances. Plaintiff argued that this amounted to "religious censorship and restrained the free exercise and enjoyment of religious profession, to wit: the distribution and sale of bibles and other religious literature to the people of the Philippines." After defining religion, the Court, citing Tanada and Fernando, made this statement, viz: The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraint of such right can only be justified like other restraints of freedom of expression on the grounds that there is a clear and present danger of any substantive evil which the State has the right to prevent. (Tanada and Fernando on the Constitution of the Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied) This was the Court’s maiden unequivocal affirmation of the "clear and present danger" rule in the religious freedom area, and in Philippine jurisprudence, for that matter.315 The case did not clearly show, however, whether the Court proceeded to apply the test to the facts and issues of the case, i.e., it did not identify the secular value the government regulation sought to protect, whether the religious speech posed a clear and present danger to this or other secular value protected by government, or whether there was danger but it could not be characterized as clear and present. It is one thing to apply the test and find that there is no clear and present danger, and quite another not to apply the test altogether. Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff as it was not engaged in the business or occupation of selling said "merchandise" for profit. To add, the Court, citing Murdock v. Pennsylvania,316 ruled that applying the ordinance requiring it to secure a license and pay a license fee or tax would impair its free exercise of religious profession and worship and its right of dissemination of religious beliefs "as the power to tax the exercise of a privilege is the power to control or suppress its enjoyment." Thus, in American Bible Society, the "clear and present danger" rule was laid down but it was not clearly applied. In the much later case of Tolentino v. Secretary of Finance,317 also involving the sale of religious books, the Court distinguished the American Bible Society case from the facts and issues in Tolentino and did not apply the American Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the validity of the registration provisions of the Value Added Tax (VAT) Law as a prior restraint. The Court held, however, that the fixed amount of registration fee was not imposed for the exercise of a privilege like a license tax which American Bible Society ruled was violative of religious freedom. Rather, the registration fee was merely an administrative fee to defray part of the cost of registration which was a central feature of the VAT system. Citing Jimmy Swaggart Ministries v. Board of Equalization,318 the Court also declared prefatorily that "the Free Exercise of Religion Clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a religious organization." In the Court’s resolution of the motion for reconsideration of the Tolentino decision, the Court noted that the burden on religious freedom caused by the tax was just similar to any other economic imposition that might make the right to disseminate religious doctrines costly. Two years after American Bible Society came the 1959 case of Gerona v. Secretary of Education,319 this time involving conduct expressive of religious belief colliding with a rule prescribed in accordance with law. In this case, petitioners were members of the Jehovah’s Witnesses. They challenged a Department Order issued by the Secretary of Education implementing Republic Act No. 1265 which prescribed compulsory flag ceremonies in all public schools. In violation of the Order, petitioner’s children refused to salute the Philippine flag, sing the national anthem, or recite the patriotic pledge, hence they were expelled from school. Seeking protection under the Free Exercise Clause, petitioners claimed that their refusal was on account of their religious belief that the Philippine flag is an image and saluting the same is contrary to their religious belief. The Court stated, viz:

. . . If the exercise of religious belief clashes with the established institutions of society and with the law, then the former must yield to the latter. The Government steps in and either restrains said exercise or even prosecutes the one exercising it. (emphasis supplied)320 The Court then proceeded to determine if the acts involved constituted a religious ceremony in conflict with the beliefs of the petitioners with the following justification: After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and misunderstanding for there might be as many interpretations and meaning to be given to a certain ritual or ceremony as there are religious groups or sects or followers, all depending upon the meaning which they, though in all sincerity and good faith, may want to give to such ritual or ceremony.321 It was held that the flag was not an image, the flag salute was not a religious ceremony, and there was nothing objectionable about the singing of the national anthem as it speaks only of love of country, patriotism, liberty and the glory of suffering and dying for it. The Court upheld the questioned Order and the expulsion of petitioner’s children, stressing that: Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of laws, even the correctness of judicial decisions and decrees; but in the field of love of country, reverence for the flag, national unity and patriotism, they can hardly afford to differ, for these are matters in which they are mutually and vitally interested, for to them, they mean national existence and survival as a nation or national extinction.322 In support of its ruling, the Court cited Justice Frankfurter’s dissent in the Barnette case, viz: The constitutional protection of religious freedom x x x gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma.323 It stated in categorical terms, viz: The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent authority.324 Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the Court to determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld if it clashes with the established institutions of society and with the law such that when a law of general applicability (in this case the Department Order) incidentally burdens the exercise of one’s religion, one’s right to religious freedom cannot justify exemption from compliance with the law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of Education, et al.325 Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.326 In this unanimously decided en banc case, Victoriano was a member of the Iglesia ni Cristo which prohibits the affiliation of its members with any labor organization. He worked in the Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope Workers Union which had with the company a closed shop provision pursuant to Republic Act No. 875 allowing closed shop arrangements. Subsequently, Republic Act No. 3350 was enacted exempting from the application and coverage of a closed shop agreement employees belonging to any religious sect which prohibits affiliation of their members with any labor organization. Victoriano resigned from the union after Republic Act No. 3350 took effect. The union notified the company of Victoriano’s resignation, which in turn notified Victoriano that unless he could make a satisfactory arrangement with the union, the company would be constrained to dismiss him from the service. Victoriano sought to enjoin the company and the union from dismissing him. The court having granted the injunction, the union came to this Court on questions of law, among which was whether Republic Act No. 3350 was unconstitutional for impairing the obligation of contracts and for granting an exemption offensive of the Establishment Clause. With respect to the first issue, the Court ruled, viz: Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a

preferred position in the hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary.327 (emphasis supplied) As regards the Establishment Clause issue, the Court after citing the constitutional provision on establishment and free exercise of religion, declared, viz: The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one’s chosen form of religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. (footnote omitted). Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the state’s secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)328 (emphasis supplied) Quoting Aglipay v. Ruiz,329 the Court held that "government is not precluded from pursuing valid objectives secular in character even if the incidental result would be favorable to a religion or sect." It also cited Board of Education v. Allen,330 which held that in order to withstand the strictures of constitutional prohibition, a statute must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Using these criteria in upholding Republic Act No. 3350, the Court pointed out, viz: (Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of union security agreements. . . . The primary effects of the exemption from closed shop agreements in favor of members of religious sects that prohibit their members from affiliating with a labor organization, is the protection of said employees against the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on their religious beliefs, and . . . eliminating to a certain extent economic insecurity due to unemployment.331 The Court stressed that "(a)lthough the exemption may benefit those who are members of religious sects that prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and indirect."332 In enacting Republic Act No. 3350, Congress merely relieved the exercise of religion by certain persons of a burden imposed by union security agreements which Congress itself also imposed through the Industrial Peace Act. The Court concluded the issue of exemption by citing Sherbert which laid down the rule that when general laws conflict with scruples of conscience, exemptions ought to be granted unless some "compelling state interest" intervenes. The Court then abruptly added that "(i)n the instant case, We see no compelling state interest to withhold exemption."333 A close look at Victoriano would show that the Court mentioned several tests in determining when religious freedom may be validly limited. First, the Court mentioned the test of "immediate and grave danger to the security and welfare of the community" and "infringement of religious freedom only to the smallest extent necessary" to justify limitation of religious freedom. Second, religious exercise may be indirectly burdened by a general law which has for its purpose and effect the advancement of the state’s secular goals, provided that there is no other means by which the state can accomplish this purpose without imposing such burden. Third, the Court referred to the "compelling state interest" test which grants exemptions when general laws conflict with religious exercise, unless a compelling state interest intervenes. It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting the importance of the protection of religious freedom as the secular purpose of Republic Act No. 3350. Upholding religious freedom was a secular

purpose insofar as it relieved the burden on religious freedom caused by another law, i.e, the Industrial Peace Act providing for union shop agreements. The first two tests were only mentioned in Victoriano but were not applied by the Court to the facts and issues of the case. The third, the "compelling state interest" test was employed by the Court to determine whether the exemption provided by Republic Act No. 3350 was not unconstitutional. It upheld the exemption, stating that there was no "compelling state interest" to strike it down. However, after careful consideration of the Sherbert case from which Victoriano borrowed this test, the inevitable conclusion is that the "compelling state interest" test was not appropriate and could not find application in the Victoriano case. In Sherbert, appellant Sherbert invoked religious freedom in seeking exemption from the provisions of the South Carolina Unemployment Compensation Act which disqualified her from claiming unemployment benefits. It was the appellees, members of the South Carolina Employment Commission, a government agency, who propounded the state interest to justify overriding Sherbert’s claim of religious freedom. The U.S. Supreme Court, considering Sherbert’s and the Commission’s arguments, found that the state interest was not sufficiently compelling to prevail over Sherbert’s free exercise claim. This situation did not obtain in the Victoriano case where it was the government itself, through Congress, which provided the exemption in Republic Act No. 3350 to allow Victoriano’s exercise of religion. Thus, the government could not argue against the exemption on the basis of a compelling state interest as it would be arguing against itself; while Victoriano would not seek exemption from the questioned law to allow the free exercose of religion as the law in fact provides such an exemption. In sum, although Victoriano involved a religious belief and conduct, it did not involve a free exercise issue where the Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious freedom. Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas,334 Anucension v. National Labor Union, et al.,335and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.336 Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners were walking to St. Jude Church within the Malacanang security area to pray for "an end to violence" when they were barred by the police. Invoking their constitutional freedom of religious worship and locomotion, they came to the Court on a petition for mandamus to allow them to enter and pray inside the St. Jude Chapel. The Court was divided on the issue. The slim majority of six recognized their freedom of religion but noted their absence of good faith and concluded that they were using their religious liberty to express their opposition to the government. Citing Cantwell, the Court distinguished between freedom to believe and freedom to act on matters of religion, viz: . . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.337 The Court reiterated the Gerona ruling, viz: In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but only in the manner by which they had attempted to translate the same to action. This curtailment is in accord with the pronouncement of this Court in Gerona v. Secretary of Education (106 Phil. 2), thus: . . . But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way to the latter. The government steps in and either restrains said exercise or even prosecutes the one exercising it. (italics supplied) The majority found that the restriction imposed upon petitioners was "necessary to maintain the smooth functioning of the executive branch of the government, which petitioners’ mass action would certainly disrupt"338 and denied the petition. Thus, without considering the tests mentioned in Victoriano, German went back to the Gerona rule that religious freedom will not be upheld if it clashes with the established institutions of society and the law. Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be cited as a test in religious freedom cases. His dissent stated in relevant part, viz:

A brief restatement of the applicable constitutional principles as set forth in the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should guide us in resolving the issues. 1. The right to freely exercise one’s religion is guaranteed in Section 8 of our Bill of Rights. (footnote omitted) Freedom of worship, alongside with freedom of expression and 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 felicitously 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.’ (J.B.L. Reyes, 125 SCRA at pp. 569-570) 2. In the free exercise of such preferred rights, there is to be no prior restraint although there may be subsequent punishment of any illegal acts committed during the exercise of such basic rights. The sole justification for a prior restraint or limitation on the exercise of these basic rights 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 a right (and duty) to prevent (Idem, at pp. 560-561).339 (emphasis supplied) The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankee’s dissent was taken involved the rights to free speech and assembly, and not the exercise of religious freedom. At issue in that case was a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila to hold a peaceful march and rally from the Luneta to the gates of the U.S. Embassy. Nevertheless Bagatsing was used by Justice Teehankee in his dissent which had overtones of petitioner German and his companions’ right to assemble and petition the government for redress of grievances.340 In 1993, the issue on the Jehovah’s Witnesses’ participation in the flag ceremony again came before the Court in Ebralinag v. The Division Superintendent of Schools.341 A unanimous Court overturned the Gerona ruling after three decades. Similar to Gerona, this case involved several Jehovah’s Witnesses who were expelled from school for refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving the same religious freedom issue as in Gerona, the Court this time transported the "grave and imminent danger" test laid down in Justice Teehankee’s dissent in German, viz: The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) 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 a right (and duty) to prevent. Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified.342 (emphasis supplied) The Court added, viz: We are not persuaded that by exempting the Jehovah’s Witnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a ‘small portion of the school population’ will shake up our part of the globe and suddenly produce a nation ‘untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes’ (Gerona v. Secretary of Education, 106 Phil. 224). After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also receive training for a vocation or profession and be taught the virtues of ‘patriotism, respect for human rights, appreciation of national heroes, the rights and duties of citizenship, and moral and spiritual values’ (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court has feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities.343 Barnette also found its way to the opinion, viz:

Furthermore, let it be noted that coerced unity and loyalty even to the country, x x xassuming that such unity and loyalty can be attained through coercion- is not a goal that is constitutionally obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046).344 Towards the end of the decision, the Court also cited the Victoriano case and its use of the "compelling state interest" test in according exemption to the Jehovah’s Witnesses, viz: In Victoriano vs. Elizalde Rope Workers’ Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any group: ‘x x x It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some ‘compelling state interest’ intervenes.’ (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)’ 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 for their religious beliefs, however ‘bizarre’ those beliefs may seem to others.345 The Court annulled the orders expelling petitioners from school. Thus, the "grave and imminent danger" test laid down in a dissenting opinion in German which involved prior restraint of religious worship with overtones of the right to free speech and assembly, was transported to Ebralinag which did not involve prior restraint of religious worship, speech or assembly. Although, it might be observed that the Court faintly implied that Ebralinag also involved the right to free speech when in its preliminary remarks, the Court stated that compelling petitioners to participate in the flag ceremony "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;" the Court then stated in a footnote that the "flag salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances."346 The "compelling state interest" test was not fully applied by the Court in Ebralinag. In the Solicitor General’s consolidated comment, one of the grounds cited to defend the expulsion orders issued by the public respondents was that "(t)he State’s compelling interests being pursued by the DEC’s lawful regulations in question do not warrant exemption of the school children of the Jehovah’s Witnesses from the flag salute ceremonies on the basis of their own self-perceived religious convictions."347 The Court, however, referred to the test only towards the end of the decision and did not even mention what the Solicitor General argued as the compelling state interest, much less did the Court explain why the interest was not sufficiently compelling to override petitioners’ religious freedom. Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of Appeals, et al.348Although there was a dissent with respect to the applicability of the "clear and present danger" test in this case, the majority opinion in unequivocal terms applied the "clear and present danger" test to religious speech. This case involved the television program, "Ang Iglesia ni Cristo," regularly aired over the television. Upon petitioner Iglesia ni Cristo’s submission of the VTR tapes of some of its episodes, respondent Board of Review for Motion Pictures and Television classified these as "X" or not for public viewing on the ground that they "offend and constitute an attack against other religions which is expressly prohibited by law." Invoking religious freedom, petitioner alleged that the Board acted without jurisdiction or with grave abuse of discretion in requiring it to submit the VTR tapes of its television program and x-rating them. While upholding the Board’s power to review the Iglesia television show, the Court was emphatic about the preferred status of religious freedom. Quoting Justice Cruz’ commentary on the constitution, the Court held that freedom to believe is absolute but freedom to act on one’s belief, where it affects the public, is subject to the authority of the state. The commentary quoted Justice Frankfurter’s dissent in Barnette which was quoted in Gerona, viz: "(t)he constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma."349 Nevertheless, the Court was quick to add the criteria by which the state can regulate the exercise of religious freedom, that is, when the exercise 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."350 In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior restraints on speech, including religious speech and the x-rating was a suppression of petitioner’s freedom of speech as much as it was an interference with its right to free exercise of religion. Citing Cantwell, the Court recognized that the different religions may criticize one another and their tenets may collide, but the Establishment Clause prohibits the state from protecting any religion from this kind of attack. The Court then called to mind the "clear and present danger" test first laid down in the American Bible Society case and the test of "immediate and grave danger" with "infringement only to the smallest extent necessary to avoid danger" in Victoriano and pointed out that the reviewing board failed to apply the "clear and present danger" test. Applying the test, the Court noted, viz: The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground. Replying to the challenge on the applicability of the "clear and present danger" test to the case, the Court acknowledged the permutations that the test has undergone, but stressed that the test is still applied to four types of speech: "speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a fair trial"351 and ruled, viz: . . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar which concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb and disturb terribly.352 In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot be invoked to seek exemption from compliance with a law that burdens one’s religious exercise. It also reiterated the "clear and present danger" test in American Bible Society and the "grave and imminent danger" in Victoriano, but this time clearly justifying its applicability and showing how the test was applied to the case. In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to religious freedom, but carving out an exception or upholding an exception to accommodate religious exercise where it is justified.353 2. Establishment Clause In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the Establishment Clause, namely, voluntarism and insulation of the political process from interfaith dissension. The first, voluntarism, has both a personal and a social dimension. As a personal value, it refers to the inviolability of the human conscience which, as discussed above, is also protected by the free exercise clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious efficacy. Compelled religion is a contradiction in terms.354 As a social value, it means that the "growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. Such voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from politics."355 Non-establishment thus calls for government neutrality in religious matters to uphold voluntarism and avoid breeding interfaith dissension.356 The neutrality principle was applied in the first significant non-establishment case under the 1935 Constitution. In the 1937 case of Aglipay v. Ruiz, 357 the Philippine Independent Church challenged the issuance and sale of postage stamps commemorating the Thirty-Third International Eucharistic Congress of the Catholic Church on the ground that the constitutional prohibition against the use of public money for religious purposes has been violated. It appears that the Director of Posts issued the questioned stamps under the provisions of Act No. 4052358 which

appropriated a sum for the cost of plates and printing of postage stamps with new designs and authorized the Director of Posts to dispose of the sum in a manner and frequency "advantageous to the Government." The printing and issuance of the postage stamps in question appears to have been approved by authority of the President. Justice Laurel, speaking for the Court, took pains explaining religious freedom and the role of religion in society, and in conclusion, found no constitutional infirmity in the issuance and sale of the stamps, viz: The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a weapon in the furtherance of their respective ends and aims . . . It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the Constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere toleration. Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence for religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. . .359 xxx

xxx

xxx

It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordination to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168)360 (emphases supplied) In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a particular religion. Almost forty-five years after Aglipay came Garces v. Estenzo.361 Although the Court found that the separation of church and state was not at issue as the controversy was over who should have custody of a saint’s image, it nevertheless made pronouncements on the separation of church and state along the same line as the Aglipay ruling. The Court held that there was nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio. It adhered to the barrio resolutions of the barangay involved in the case stating that the barrio fiesta is a socioreligious affair, the celebration of which is an "ingrained tradition in rural communities" that "relieves the monotony and drudgery of the lives of the masses." Corollarily, the Court found nothing illegal about any activity intended to facilitate the worship of the patron saint such as the acquisition and display of his image bought with funds obtained through solicitation from the barrio residents. The Court pointed out that the image of the patron saint was "purchased in connection with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio residents." Citing the Aglipay ruling, the Court declared, viz: Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding

separation of church and state, freedom of worship and banning the use of public money or property. Then came the 1978 case of Pamil v. Teleron, et al.362 which presented a novel issue involving the religion clauses. In this case, Section 2175 of the Revised Administrative Code of 1917 disqualifying ecclesiastics from appointment or election as municipal officer was challenged. After protracted deliberation, the Court was sharply divided on the issue. Seven members of the Court, one short of the number necessary to declare a law unconstitutional, approached the problem from a free exercise perspective and considered the law a religious test offensive of the constitution. They were Justices Fernando, Teehankee, Muñoz-Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente, stated, viz: "The challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the Constitution." Citing Torcaso v. Watkins,363 the ponencia held, viz: Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there involved was the validity of a provision in the Maryland Constitution prescribing that ‘no religious test ought ever to be required as a disqualification for any office or profit or trust in this State, other than a declaration of belief in the existence of God ***.’ Such a constitutional requirement was assailed as contrary to the First Amendment of the United States Constitution by an appointee to the office of notary public in Maryland, who was refused a commission as he would not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States Supreme Court, which reversed the state court decision. It could not have been otherwise. As emphatically declared by Justice Black: ‘this Maryland religious test for public office unconstitutionally invades the appellant’s freedom of belief and religion and therefore cannot be enforced against him. The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is thus an incompatibility between the Administrative Code provision relied upon by petitioner and an express constitutional mandate.364 On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached the case from a non-establishment perspective and upheld the law as a safeguard against the constant threat of union of church and state that has marked Philippine history. Justice Makasiar stated: "To allow an ecclesiastic to head the executive department of a municipality is to permit the erosion of the principle of separation of Church and State and thus open the floodgates for the violation of the cherished liberty of religion which the constitutional provision seeks to enforce and protect." Consequently, the Court upheld the validity of Section 2175 of the Revised Administrative Code and declared respondent priest ineligible for the office of municipal mayor. Another type of cases interpreting the establishment clause deals with intramural religious disputes. Fonacier v. Court of Appeals365 is the leading case. The issue therein was the right of control over certain properties of the Philippine Independent Church, the resolution of which necessitated the determination of who was the legitimate bishop of the church. The Court cited American Jurisprudence,366 viz: Where, however, a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in conflict with the law of the land, it will not be followed by the civil courts. . . In some instances, not only have the civil courts the right to inquire into the jurisdiction of the religious tribunals and the regularity of their procedure, but they have subjected their decisions to the test of fairness or to the test furnished by the constitution and the law of the church. . .367 The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes was the duly elected head of the Church, based on their internal laws. To finally dispose of the property issue, the Court, citing Watson v. Jones, 368 declared that the rule in property controversies within religious congregations strictly independent of any other superior ecclesiastical association (such as the Philippine Independent Church) is that the rules for resolving such controversies should be those of any voluntary association. If the congregation adopts the majority rule then the majority should prevail; if it adopts adherence to duly constituted authorities within the congregation, then that should be followed. Applying these rules, Fonacier lost the case. While the Court exercised jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary differences raised, viz: The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by appellant, having to do with faith,

practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from the church those allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts.369 VIII. Free Exercise Clause vis-à-vis Establishment Clause In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free Exercise Clause and the Establishment Clause in their application. There is a natural antagonism between a command not to establish religion and a command not to inhibit its practice; this tension between the religion clauses often leaves the courts with a choice between competing values in religion cases.370 One set of facts, for instance, can be differently viewed from the Establishment Clause perspective and the Free Exercise Clause point of view, and decided in opposite directions. In Pamil, the majority gave more weight to the religious liberty of the priest in holding that the prohibition of ecclesiastics to assume elective or appointive government positions was violative of the Free Exercise Clause. On the other hand, the prevailing five justices gave importance to the Establishment Clause in stating that the principle of separation of church and state justified the prohibition. Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently exemptions from a law of general applicability are afforded by the Court to the person claiming religious freedom; the question arises whether the exemption does not amount to support of the religion in violation of the Establishment Clause. This was the case in the Free Exercise Clause case of Sherbert where the U.S. Supreme Court ruled, viz: In holding as we do, plainly we are not fostering the "establishment" of the Seventhday Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.371 (emphasis supplied) Tension also exists when a law of general application provides exemption in order to uphold free exercise as in the Walz case where the appellant argued that the exemption granted to religious organizations, in effect, required him to contribute to religious bodies in violation of the Establishment Clause. But the Court held that the exemption was not a case of establishing religion but merely upholding the Free Exercise Clause by "sparing the exercise of religion from the burden of property taxation levied on private profit institutions." Justice Burger wrote, viz: (t)he Court has struggled to find a neutral course between the two religion clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.372 Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by law to religious sects who prohibit their members from joining unions did not offend the Establishment Clause. We ruled, viz: We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden that is imposed by union security agreements.373 (emphasis supplied) Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court nevertheless upholds it. In Schempp, Justice Brennan stated: "(t)here are certain practices, conceivably violative of the Establishment Clause, the striking down of which might seriously interfere with certain religious liberties also protected by the First Amendment." How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is a question for determination in the actual cases that come to the Court. In cases involving both the Establishment Clause and the Free Exercise Clause, the two clauses should be balanced against each other. The courts must review all the relevant facts and determine whether there is a sufficiently strong free exercise right that should prevail over the Establishment Clause problem. In the United States, it has been proposed that in balancing, the free exercise claim must be given an edge not only because of abundant historical evidence in the colonial and early national period of the United States that the free exercise principle long antedated any broad-based support

of disestablishment, but also because an Establishment Clause concern raised by merely accommodating a citizen’s free exercise of religion seems far less dangerous to the republic than pure establishment cases. Each time the courts side with the Establishment Clause in cases involving tension between the two religion clauses, the courts convey a message of hostility to the religion that in that case cannot be freely exercised.374 American professor of constitutional law, Laurence Tribe, similarly suggests that the free exercise principle "should be dominant in any conflict with the anti-establishment principle." This dominance would be the result of commitment to religious tolerance instead of "thwarting at all costs even the faintest appearance of establishment."375 In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the religion clauses does not suffice. Modern society is characterized by the expanding regulatory arm of government that reaches a variety of areas of human conduct and an expanding concept of religion. To adequately meet the demands of this modern society, the societal values the religion clauses are intended to protect must be considered in their interpretation and resolution of the tension. This, in fact, has been the approach followed by the Philippine Court.376 IX. Philippine Religion Clauses: Based on Philippine and American Law and Jurisprudence

Nature, Religion

Purpose, Clause

Tests History,

The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from the First Amendment of the U.S. Constitution. The religion clauses in the First Amendment were contained in every organic Act of the Philippines under the American regime. When the delegates of the 1934 Constitutional Convention adopted a Bill of Rights in the 1935 Constitution, they purposely retained the phraseology of the religion clauses in the First Amendment as contained in the Jones Law in order to adopt its historical background, nature, extent and limitations. At that time, there were not too many religion clause cases in the United States as the U.S. Supreme Court decided an Establishment Clause issue only in the 1947 Everson case. The Free Exercise Clause cases were also scarce then. Over the years, however, with the expanding reach of government regulation to a whole gamut of human actions and the growing plurality and activities of religions, the number of religion clause cases in the U.S. exponentially increased. With this increase came an expansion of the interpretation of the religion clauses, at times reinforcing prevailing case law, at other times modifying it, and still at other times creating contradictions so that two main streams of jurisprudence had become identifiable. The first stream employs separation while the second employs benevolent neutrality in interpreting the religious clauses. Alongside this change in the landscape of U.S. religion clause jurisprudence, the Philippines continued to adopt the 1935 Constitution religion clauses in the 1973 Constitution and later, the 1987 Constitution. Philippine jurisprudence and commentaries on the religious clauses also continued to borrow authorities from U.S. jurisprudence without articulating the stark distinction between the two streams of U.S. jurisprudence. One might simply conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and the two identifiable streams; thus, when a religion clause case comes before the Court, a separationist approach or a benevolent neutrality approach might be adopted and each will have U.S. authorities to support it. Or, one might conclude that as the history of the First Amendment as narrated by the Court in Everson supports the separationist approach, Philippine jurisprudence should also follow this approach in light of the Philippine religion clauses’ history. As a result, in a case where the party claims religious liberty in the face of a general law that inadvertently burdens his religious exercise, he faces an almost insurmountable wall in convincing the Court that the wall of separation would not be breached if the Court grants him an exemption. These conclusions, however, are not and were never warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on religion in all three constitutions.1âwphi1 It is a cardinal rule in constitutional construction that the constitution must be interpreted as a whole and apparently conflicting provisions should be reconciled and harmonized in a manner that will give to all of them full force and effect.377 From this construction, it will be ascertained that the intent of the framers was to adopt a benevolent neutrality approach in interpreting the religious clauses in the Philippine constitutions, and the enforcement of this intent is the goal of construing the constitution.378 We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the 1935 Constitution provided for an Establishment Clause, it also provided for tax exemption of church property in Article VI, Section 22, par. 3(b), viz: (3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands, buildings, and improvements used exclusively for religious, charitable, or educational purposes shall be exempt from taxation. Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a similar exemption. To the same effect, the Tydings-McDuffie Law contained a limitation on the taxing power of the Philippine government during the

Commonwealth period.379 The original draft of the Constitution placed this provision in an ordinance to be appended to the Constitution because this was among the provisions prescribed by the Tydings-McDuffie Law. However, in order to have a constitutional guarantee for such an exemption even beyond the Commonwealth period, the provision was introduced in the body of the Constitution on the rationale that "if churches, convents [rectories or parsonages] and their accessories are always necessary for facilitating the exercise of such [religious] freedom, it would also be natural that their existence be also guaranteed by exempting them from taxation."380 The amendment was readily approved with 83 affirmative votes against 15 negative votes.381 The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the U.S. case of Walz, the Court struggled to justify this kind of exemption to withstand Establishment Clause scrutiny by stating that church property was not singled out but was exempt along with property owned by non-profit, quasipublic corporations because the state upheld the secular policy "that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest." The Court also stated that the exemption was meant to relieve the burden on free exercise imposed by property taxation. At the same time, however, the Court acknowledged that the exemption was an exercise of benevolent neutrality to accommodate a long-standing tradition of exemption. With the inclusion of the church property tax exemption in the body of the 1935 Constitution and not merely as an ordinance appended to the Constitution, the benevolent neutrality referred to in the Walz case was given constitutional imprimatur under the regime of the 1935 Constitution. The provision, as stated in the deliberations, was an acknowledgment of the necessity of the exempt institutions to the exercise of religious liberty, thereby evincing benevolence towards religious exercise. Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz: (3) No public money, or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution or system of religion, for the use, benefit or support of any priest, preacher, ministers or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium. (emphasis supplied) The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law which did not contain the above exception, viz: No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest, preacher, minister, or dignitary as such…382 In the deliberations of this draft provision, an amendment was proposed to strike down everything after "church denomination."383 The proposal intended to imitate the silence of the U.S. Constitution on the subject of support for priests and ministers. It was also an imitation of the silence of the Malolos Constitution to restore the situation under the Malolos Constitution and prior to the Jones Law, when chaplains of the revolutionary army received pay from public funds with no doubt about its legality. It was pointed out, however, that even with the prohibition under the Jones Law, appropriations were made to chaplains of the national penitentiary and the Auditor General upheld its validity on the basis of a similar United States practice. But it was also pointed out that the U.S. Constitution did not contain a prohibition on appropriations similar to the Jones Law.384 To settle the question on the constitutionality of payment of salaries of religious officers in certain government institutions and to avoid the feared situation where the enumerated government institutions could not employ religious officials with compensation, the exception in the 1935 provision was introduced and approved. The provision garnered 74 affirmative votes against 34 negative votes.385 As pointed out in the deliberations, the U.S. Constitution does not provide for this exemption. However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a benevolent neutrality approach, implicitly approved the state of Texas’ payment of prison chaplains’ salaries as reasonably necessary to permit inmates to practice their religion. Also, in the Marsh case, the U.S. Supreme Court upheld the long-standing tradition of beginning legislative sessions with prayers offered by legislative chaplains retained at taxpayers’ expense. The constitutional provision exempting religious officers in government institutions affirms the departure of the Philippine Constitution from the U.S. Constitution in its adoption of benevolent neutrality in Philippine jurisdiction. While the provision prohibiting aid to religion protects the wall of separation between church and state, the provision at the same time gives constitutional sanction to a breach in the wall.

To further buttress the thesis that benevolent neutrality is contemplated in the Philippine Establishment Clause, the 1935 Constitution provides for optional religious instruction in public schools in Article XIII, Section 5, viz: . . . Optional religious instruction shall be maintained in the public schools as now authorized by law. . . The law then applicable was Section 928 of the Administrative Code, viz: It shall be lawful, however, for the priest or minister of any church established in the town where a public school is situated, either in person or by a designated teacher of religion, to teach religion for one-half hour three times a week, in the school building, to those public-school pupils whose parents or guardians desire it and express their desire therefor in writing filed with the principal of the school . . . During the debates of the Constitutional Convention, there were three positions on the issue of religious instruction in public schools. The first held that the teaching of religion in public schools should be prohibited as this was a violation of the principle of separation of church and state and the prohibition against the use of public funds for religious purposes. The second favored the proposed optional religious instruction as authorized by the Administrative Code and recognized that the actual practice of allowing religious instruction in the public schools was sufficient proof that religious instruction was not and would not be a source of religious discord in the schools.386The third wanted religion to be included as a course in the curriculum of the public schools but would only be taken by pupils at the option of their parents or guardians. After several rounds of debate, the second camp prevailed, thus raising to constitutional stature the optional teaching of religion in public schools, despite the opposition to the provision on the ground of separation of church and state.387 As in the provisions on church property tax exemption and compensation of religious officers in government institutions, the U.S. Constitution does not provide for optional religious instruction in public schools. In fact, in the McCollum case, the Court, using strict neutrality, prohibited this kind of religious instruction where the religion teachers would conduct class within the school premises. The constitutional provision on optional religious instruction shows that Philippine jurisdiction rejects the strict neutrality approach which does not allow such accommodation of religion. Finally, to make certain the Constitution’s benevolence to religion, the Filipino people "implored (ing) the aid of Divine Providence (,) in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing) this Constitution." A preamble is a "key to open the mind of the authors of the constitution as to the evil sought to be prevented and the objects sought to be accomplished by the provisions thereof."388 There was no debate on the inclusion of a "Divine Providence" in the preamble. In Aglipay, Justice Laurel noted that when the Filipino people implored the aid of Divine Providence, "(t)hey thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations."389 The 1935 Constitution’s religion clauses, understood alongside the other provisions on religion in the Constitution, indubitably shows not hostility, but benevolence, to religion.390 The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on exemption of church property from taxation, with the modification that the property should not only be used directly, but also actually and exclusively for religious or charitable purposes. Parallel to Article VI, Section 23(3) of the 1935 Constitution, the 1973 Constitution also contained a similar provision on salaries of religious officials employed in the enumerated government institutions. Article XIII, Section 5 of the 1935 Constitution on optional religious instruction was also carried to the 1973 Constitution in Article XV, Section 8(8) with the modification that optional religious instruction shall be conducted "as may be provided by law" and not "as now authorized by law" as stated in the 1935 Constitution. The 1973 counterpart, however, made explicit in the constitution that the religious instruction in public elementary and high schools shall be done "(a)t the option expressed in writing by the parents or guardians, and without cost to them and the government." With the adoption of these provisions in the 1973 Constitution, the benevolent neutrality approach continued to enjoy constitutional sanction. In Article XV, Section 15 of the General Provisions of the 1973 Constitution this provision made its maiden appearance: "(t)he separation of church and state shall be inviolable." The 1973 Constitution retained the portion of the preamble "imploring the aid of Divine Providence." In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church and State of the 1971 Constitutional Convention, the question

arose as to whether the "absolute" separation of Church and State as enunciated in the Everson case and reiterated in Schempp - i.e., neutrality not only as between one religion and another but even as between religion and non-religion - is embodied in the Philippine Constitution. The sub-committee’s answer was that it did not seem so. Citing the Aglipay case where Justice Laurel recognized the "elevating influence of religion in human society" and the Filipinos’ imploring of Divine Providence in the 1935 Constitution, the sub-committee asserted that the state may not prefer or aid one religion over another, but may aid all religions equally or the cause of religion in general.391 Among the position papers submitted to the Committee on Church on State was a background paper for reconsideration of the religion provisions of the constitution by Fr. Bernas, S.J. He stated therein that the Philippine Constitution is not hostile to religion and in fact recognizes the value of religion and accommodates religious values.392 Stated otherwise, the Establishment Clause contemplates not a strict neutrality but benevolent neutrality. While the Committee introduced the provision on separation of church and state in the General Provisions of the 1973 Constitution, this was nothing new as according to it, this principle was implied in the 1935 Constitution even in the absence of a similar provision.393 Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church property was retained with minor modification in Article VI, Section 28(3) of the 1987 Constitution. The same is true with respect to the prohibition on the use of public money and property for religious purposes and the salaries of religious officers serving in the enumerated government institutions, now contained in Article VI, Section 29(2). Commissioner Bacani, however, probed into the possibility of allowing the government to spend public money for purposes which might have religious connections but which would benefit the public generally. Citing the Aglipay case, Commissioner Rodrigo explained that if a public expenditure would benefit the government directly, such expense would be constitutional even if it results to an incidental benefit to religion. With that explanation, Commissioner Bacani no longer pursued his proposal.394 The provision on optional religious instruction was also adopted in the 1987 Constitution in Article XIV, Section 3(3) with the modification that it was expressly provided that optional instruction shall be conducted "within the regular class hours" and "without additional cost to the government". There were protracted debates on what additional cost meant, i.e., cost over and above what is needed for normal operations such as wear and tear, electricity, janitorial services,395 and when during the day instruction would be conducted.396 In deliberating on the phrase "within the regular class hours," Commissioner Aquino expressed her reservations to this proposal as this would violate the time-honored principle of separation of church and state. She cited the McCullom case where religious instruction during regular school hours was stricken down as unconstitutional and also cited what she considered the most liberal interpretation of separation of church and state in Surach v. Clauson where the U.S. Supreme Court allowed only release time for religious instruction. Fr. Bernas replied, viz: . . . the whole purpose of the provision was to provide for an exception to the rule on non-establishment of religion, because if it were not necessary to make this exception for purposes of allowing religious instruction, then we could just drop the amendment. But, as a matter of fact, this is necessary because we are trying to introduce something here which is contrary to American practices.397 (emphasis supplied) "(W)ithin regular class hours" was approved. The provision on the separation of church and state was retained but placed under the Principles in the Declaration of Principles and State Policies in Article II, Section 6. In opting to retain the wording of the provision, Fr. Bernas stated, viz: . . . It is true, I maintain, that as a legal statement the sentence ‘The separation of Church and State is inviolable,’ is almost a useless statement; but at the same time it is a harmless statement. Hence, I am willing to tolerate it there, because, in the end, if we look at the jurisprudence on Church and State, arguments are based not on the statement of separation of church and state but on the non-establishment clause in the Bill of Rights.398 The preamble changed "Divine Providence" in the 1935 and 1973 Constitutions to "Almighty God." There was considerable debate on whether to use "Almighty God" which Commissioner Bacani said was more reflective of Filipino religiosity, but Commissioner Rodrigo recalled that a number of atheistic delegates in the 1971 Constitutional Convention objected to reference to a personal God.399 "God of History", "Lord of History" and "God" were also proposed, but the phrase "Almighty God" prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious that the 1987

Constitution is not hostile nor indifferent to religion;400 its wall of separation is not a wall of hostility or indifference.401

national soul, history and tradition. After all, "the life of the law. . . has been experience."

The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary of religious officers in government institutions, optional religious instruction and the preamble all reveal without doubt that the Filipino people, in adopting these constitutions, did not intend to erect a high and impregnable wall of separation between the church and state.402 The strict neutrality approach which examines only whether government action is for a secular purpose and does not consider inadvertent burden on religious exercise protects such a rigid barrier. By adopting the above constitutional provisions on religion, the Filipinos manifested their adherence to the benevolent neutrality approach in interpreting the religion clauses, an approach that looks further than the secular purposes of government action and examines the effect of these actions on religious exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and the elevating influence of religion in society; at the same time, it acknowledges that government must pursue its secular goals. In pursuing these goals, however, government might adopt laws or actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality gives room for accommodation of these religious exercises as required by the Free Exercise Clause. It allows these breaches in the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion clauses. The case at bar involves this first type of accommodation where an exemption is sought from a law of general applicability that inadvertently burdens religious exercise.

But while history, constitutional construction, and earlier jurisprudence unmistakably show that benevolent neutrality is the lens with which the Court ought to view religion clause cases, it must be stressed that the interest of the state should also be afforded utmost protection. To do this, a test must be applied to draw the line between permissible and forbidden religious exercise. It is quite paradoxical that in order for the members of a society to exercise their freedoms, including their religious liberty, the law must set a limit when their exercise offends the higher interest of the state. To do otherwise is self-defeating for unlimited freedom would erode order in the state and foment anarchy, eventually destroying the very state its members established to protect their freedoms. The very purpose of the social contract by which people establish the state is for the state to protect their liberties; for this purpose, they give up a portion of these freedoms - including the natural right to free exercise - to the state. It was certainly not the intention of the authors of the constitution that free exercise could be used to countenance actions that would undo the constitutional order that guarantees free exercise.405

Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it. But it does mean that the Court will not look with hostility or act indifferently towards religious beliefs and practices and that it will strive to accommodate them when it can within flexible constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the orthodox view for this precisely is the protection afforded by the religion clauses of the Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability, the Court can carve out an exception when the religion clauses justify it. While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of judgment in determining the degree of burden on religious practice or importance of the state interest or the sufficiency of the means adopted by the state to pursue its interest, the Court can set a doctrine on the ideal towards which religious clause jurisprudence should be directed.403 We here lay down the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as discussed above, but more importantly, because our constitutional history and interpretation indubitably show that benevolent neutrality is the launching pad from which the Court should take off in interpreting religion clause cases. The ideal towards which this approach is directed is the protection of religious liberty "not only for a minority, however small- not only for a majority, however large- but for each of us" to the greatest extent possible within flexible constitutional limits. Benevolent neutrality is manifest not only in the Constitution but has also been recognized in Philippine jurisprudence, albeit not expressly called "benevolent neutrality" or "accommodation". In Aglipay, the Court not only stressed the "elevating influence of religion in human society" but acknowledged the Constitutional provisions on exemption from tax of church property, salary of religious officers in government institutions, and optional religious instruction as well as the provisions of the Administrative Code making Thursday and Friday of the Holy Week, Christmas Day and Sundays legal holidays. In Garces, the Court not only recognized the Constitutional provisions indiscriminately granting concessions to religious sects and denominations, but also acknowledged that government participation in long-standing traditions which have acquired a social character - "the barrio fiesta is a socio-religious affair" does not offend the Establishment Clause. In Victoriano, the Court upheld the exemption from closed shop provisions of members of religious sects who prohibited their members from joining unions upon the justification that the exemption was not a violation of the Establishment Clause but was only meant to relieve the burden on free exercise of religion. In Ebralinag, members of the Jehovah’s Witnesses were exempt from saluting the flag as required by law, on the basis not of a statute granting exemption but of the Free Exercise Clause without offending the Establishment Clause. While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional law has departed from the U.S. jurisprudence of employing a separationist or strict neutrality approach. The Philippine religion clauses have taken a life of their own, breathing the air of benevolent neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction is not as high and impregnable as the wall created by the U.S. Supreme Court in Everson.404 While the religion clauses are a unique American experiment which understandably came about as a result of America’s English background and colonization, the life that these clauses have taken in this jurisdiction is the Philippines’ own experiment, reflective of the Filipinos’ own

The all important question then is the test that should be used in ascertaining the limits of the exercise of religious freedom. Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona case then pronounced that the test of permissibility of religious freedom is whether it violates the established institutions of society and law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine that a law of general applicability may burden religious exercise provided the law is the least restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the "compelling state interest" test. After Victoriano, German went back to the Gerona rule. Ebralinag then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the "clear and present danger" test in the maiden case of American Bible Society. Not surprisingly, all the cases which employed the "clear and present danger" or "grave and immediate danger" test involved, in one form or another, religious speech as this test is often used in cases on freedom of expression. On the other hand, the Gerona and German cases set the rule that religious freedom will not prevail over established institutions of society and law. Gerona, however, which was the authority cited by German has been overruled by Ebralinag which employed the "grave and immediate danger" test. Victoriano was the only case that employed the "compelling state interest" test, but as explained previously, the use of the test was inappropriate to the facts of the case. The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where the "clear and present danger" and "grave and immediate danger" tests were appropriate as speech has easily discernible or immediate effects. The Gerona and German doctrine, aside from having been overruled, is not congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious belief. The "compelling state interest" test is proper where conduct is involved for the whole gamut of human conduct has different effects on the state’s interests: some effects may be immediate and short-term while others delayed and far-reaching. A test that would protect the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson.406 This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty,407 thus the Filipinos implore the "aid of Almighty God in order to build a just and humane society and establish a government." As held in Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed.408 In determining which shall prevail between the state’s interest and religious liberty, reasonableness shall be the guide.409 The "compelling state interest" serves the purpose of revering religious liberty while at the same time affording protection to the paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test, by upholding the paramount interests of the state, seeks to protect the very state, without which, religious liberty will not be preserved.

X. Application of the Religion Clauses to the Case at Bar

democracy. Without fundamental agreement on political and moral ideas, society will fall into anarchy; the agreement is necessary to the existence and progress of society.

A. The Religion Clauses and Morality In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty of "disgraceful and immoral conduct" for which he/she may be held administratively liable.410 In these cases, there was not one dissent to the majority’s ruling that their conduct was immoral. The respondents themselves did not foist the defense that their conduct was not immoral, but instead sought to prove that they did not commit the alleged act or have abated from committing the act. The facts of the 1975 case of De Dios v. Alejo411 and the 1999 case of Maguad v. De Guzman,412 are similar to the case at bar - i.e., the complainant is a mere stranger and the legal wife has not registered any objection to the illicit relation, there is no proof of scandal or offense to the moral sensibilities of the community in which the respondent and the partner live and work, and the government employee is capacitated to marry while the partner is not capacitated but has long been separated in fact. Still, the Court found the government employees administratively liable for "disgraceful and immoral conduct" and only considered the foregoing circumstances to mitigate the penalty. Respondent Escritor does not claim that there is error in the settled jurisprudence that an illicit relation constitutes disgraceful and immoral conduct for which a government employee is held liable. Nor is there an allegation that the norms of morality with respect to illicit relations have shifted towards leniency from the time these precedent cases were decided. The Court finds that there is no such error or shift, thus we find no reason to deviate from these rulings that such illicit relationship constitutes "disgraceful and immoral conduct" punishable under the Civil Service Law. Respondent having admitted the alleged immoral conduct, she, like the respondents in the abovecited cases, could be held administratively liable. However, there is a distinguishing factor that sets the case at bar apart from the cited precedents, i.e., as a defense, respondent invokes religious freedom since her religion, the Jehovah’s Witnesses, has, after thorough investigation, allowed her conjugal arrangement with Quilapio based on the church’s religious beliefs and practices. This distinguishing factor compels the Court to apply the religious clauses to the case at bar. Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of Mme. Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the standards of morality than on the religion clauses in deciding the instant case. A discussion on morality is in order. At base, morality refers to, in Socrates’ words, "how we ought to live" and why. Any definition of morality beyond Socrates’ simple formulation is bound to offend one or another of the many rival theories regarding what it means to live morally.413 The answer to the question of how we ought to live necessarily considers that man does not live in isolation, but in society. Devlin posits that a society is held together by a community of ideas, made up not only of political ideas but also of ideas about the manner its members should behave and govern their lives. The latter are their morals; they constitute the public morality. Each member of society has ideas about what is good and what is evil. If people try to create a society wherein there is no fundamental agreement about good and evil, they will fail; if having established the society on common agreement, the agreement collapses, the society will disintegrate. Society is kept together by the invisible bonds of common thought so that if the bonds are too loose, the members would drift apart. A common morality is part of the bondage and the bondage is part of the price of society; and mankind, which needs society, must pay its price.414 This design is parallel with the social contract in the realm of politics: people give up a portion of their liberties to the state to allow the state to protect their liberties. In a constitutional order, people make a fundamental agreement about the powers of government and their liberties and embody this agreement in a constitution, hence referred to as the fundamental law of the land. A complete break of this fundamental agreement such as by revolution destroys the old order and creates a new one.415 Similarly, in the realm of morality, the breakdown of the fundamental agreement about the manner a society’s members should behave and govern their lives would disintegrate society. Thus, society is justified in taking steps to preserve its moral code by law as it does to preserve its government and other essential institutions.416 From these propositions of Devlin, one cannot conclude that Devlin negates diversity in society for he is merely saying that in the midst of this diversity, there should nevertheless be a "fundamental agreement about good and evil" that will govern how people in a society ought to live. His propositions, in fact, presuppose diversity hence the need to come to an agreement; his position also allows for change of morality from time to time which may be brought about by this diversity. In the same vein, a pluralistic society lays down fundamental rights and principles in their constitution in establishing and maintaining their society, and these fundamental values and principles are translated into legislation that governs the order of society, laws that may be amended from time to time. Hart’s argument propounded in Mr. Justice Vitug’s separate opinion that, "Devlin’s view of people living in a single society as having common moral foundation (is) overly simplistic" because "societies have always been diverse" fails to recognize the necessity of Devlin’s proposition in a

In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic governance. 417 Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups.418 Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies -- including protection of religious freedom "not only for a minority, however small- not only for a majority, however large- but for each of us" -- the majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities.419 In the realm of religious exercise, benevolent neutrality that gives room for accommodation carries out this promise, provided the compelling interests of the state are not eroded for the preservation of the state is necessary to the preservation of religious liberty. That is why benevolent neutrality is necessary in a pluralistic society such as the United States and the Philippines to accommodate those minority religions which are politically powerless. It is not surprising that Smith is much criticized for it blocks the judicial recourse of the minority for religious accommodations. The laws enacted become expressions of public morality. As Justice Holmes put it, "(t)he law is the witness and deposit of our moral life."420 "In a liberal democracy, the law reflects social morality over a period of time."421Occasionally though, a disproportionate political influence might cause a law to be enacted at odds with public morality or legislature might fail to repeal laws embodying outdated traditional moral views.422 Law has also been defined as "something men create in their best moments to protect themselves in their worst moments."423 Even then, laws are subject to amendment or repeal just as judicial pronouncements are subject to modification and reversal to better reflect the public morals of a society at a given time. After all, "the life of the law...has been experience," in the words of Justice Holmes. This is not to say though that law is all of morality. Law deals with the minimum standards of human conduct while morality is concerned with the maximum. A person who regulates his conduct with the sole object of avoiding punishment under the law does not meet the higher moral standards set by society for him to be called a morally upright person.424 Law also serves as "a helpful starting point for thinking about a proper or ideal public morality for a society"425 in pursuit of moral progress. In Magno v. Court of Appeals, et al.,426 we articulated the relationship between law and public morality. We held that under the utilitarian theory, the "protective theory" in criminal law, "criminal law is founded upon the moral disapprobation x x x of actions which are immoral, i.e., which are detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society. This disapprobation is inevitable to the extent that morality is generally founded and built upon a certain concurrence in the moral opinions of all. x x x That which we call punishment is only an external means of emphasizing moral disapprobation: the method of punishment is in reality the amount of punishment."427 Stated otherwise, there are certain standards of behavior or moral principles which society requires to be observed and these form the bases of criminal law. Their breach is an offense not only against the person injured but against society as a whole.428 Thus, even if all involved in the misdeed are consenting parties, such as in the case at bar, the injury done is to the public morals and the public interest in the moral order.429 Mr. Justice Vitug expresses concern on this point in his separate opinion. He observes that certain immoral acts which appear private and not harmful to society such as sexual congress "between a man and a prostitute, though consensual and private, and with no injured third party, remains illegal in this country." His opinion asks whether these laws on private morality are justified or they constitute impingement on one’s freedom of belief. Discussion on private morality, however, is not material to the case at bar for whether respondent’s conduct, which constitutes concubinage,430 is private in the sense that there is no injured party or the offended spouse consents to the concubinage, the inescapable fact is that the legislature has taken concubinage out of the sphere of private morals. The legislature included concubinage as a crime under the Revised Penal Code and the constitutionality of this law is not being raised in the case at bar. In the definition of the crime of concubinage, consent of the injured party, i.e., the legal spouse, does not alter or negate the crime unlike in rape431 where consent of the supposed victim negates the crime. If at all, the consent or pardon of the offended spouse in concubinage negates the prosecution of the action,432 but does not alter the legislature’s characterization of the act as a moral disapprobation punishable by law. The separate opinion states that, "(t)he ponencia has taken pains to distinguish

between secular and private morality, and reached the conclusion that the law, as an instrument of the secular State should only concern itself with secular morality." The Court does not draw this distinction in the case at bar. The distinction relevant to the case is not, as averred and discussed by the separate opinion, "between secular and private morality," but between public and secular morality on the one hand, and religious morality on the other, which will be subsequently discussed. Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those wrongs which are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code, dealing with Human Relations, provide for the recognition of the wrong and the concomitant punishment in the form of damages. Articles 19 and 21 provide, viz: Art. 19. Any person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith. xxx

xxx

xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. (emphasis supplied) We then cited in Velayo the Code Commission’s comment on Article 21: Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe adequate legal remedy for that untold numbers of moral wrongs which is impossible for human foresight to provide for specifically in the statutes. But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The answer is that, in the last analysis, every good law draws its breath of life from morals, from those principles which are written with words of fire in the conscience of man. If this premise is admitted, then the proposed rule is a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs which cause damages. When it is reflected that while codes of law and statutes have changed from age to age, the conscience of man has remained fixed to its ancient moorings, one can not but feel that it is safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative attributes. Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with impunity cause damage to his fellow-men so long as he does not break any law of the State, though he may be defying the most sacred postulates of morality. What is more, the victim loses faith in the ability of the government to afford him protection or relief. A provision similar to the one under consideration is embodied in article 826 of the German Civil Code.433(emphases supplied) The public morality expressed in the law is necessarily secular for in our constitutional order, the religion clauses prohibit the state from establishing a religion, including the morality it sanctions. Religious morality proceeds from a person’s "views of his relations to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will," in accordance with this Court’s definition of religion in American Bible Society citing Davis. Religion also dictates "how we ought to live" for the nature of religion is not just to know, but often, to act in accordance with man’s "views of his relations to His Creator."434 But the Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the other, and implies the affirmative "establishment" of a civil order for the resolution of public moral disputes. This agreement on a secular mechanism is the price of ending the "war of all sects against all"; the establishment of a secular public moral order is the social contract produced by religious truce.435 Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional Responsibility for lawyers436 , or "public morals" in the Revised Penal Code,437 or "morals" in the New Civil Code,438or "moral character" in the Constitution,439 the distinction between public and secular morality on the one hand, and religious morality, on the other, should be kept in mind.440 The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil

public order but public moral disputes may be resolved only on grounds articulable in secular terms."441 Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or nonreligious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens. Expansive religious freedom therefore requires that government be neutral in matters of religion; governmental reliance upon religious justification is inconsistent with this policy of neutrality.442 In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven.443 Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. Otherwise, if a law has an apparent secular purpose but upon closer examination shows a discriminatory and prohibitory religious purpose, the law will be struck down for being offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting animal sacrifice of the Santeria. Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitution’s religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests. Mr. Justice Vitug’s separate opinion embraces the benevolent neutrality approach when it states that in deciding the case at bar, the approach should consider that, "(a)s a rule . . . moral laws are justified only to the extent that they directly or indirectly serve to protect the interests of the larger society. It is only where their rigid application would serve to obliterate the value which society seeks to uphold, or defeat the purpose for which they are enacted would, a departure be justified." In religion clause parlance, the separate opinion holds that laws of general applicability governing morals should have a secular purpose of directly or indirectly protecting the interests of the state. If the strict application of these laws (which are the Civil Service Law and the laws on marriage) would erode the secular purposes of the law (which the separate opinion identifies as upholding the sanctity of marriage and the family), then in a benevolent neutrality framework, an accommodation of the unconventional religious belief and practice (which the separate opinion holds should be respected on the ground of freedom of belief) that would promote the very same secular purpose of upholding the sanctity of marriage and family through the Declaration Pledging Faithfulness that makes the union binding and honorable before God and men, is required by the Free Exercise Clause. The separate opinion then makes a preliminary discussion of the values society seeks to protect in adhering to monogamous marriage, but concludes that these values and the purposes of the applicable laws should be thoroughly examined and evidence in relation thereto presented in the OCA. The accommodation approach in the case at bar would also require a similar discussion of these values and presentation of evidence before the OCA by the state that seeks to protect its interest on marriage and opposes the accommodation of the unconventional religious belief and practice regarding marriage. The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on the one hand, and religious morality, on the other, is important because the jurisdiction of the Court extends only to public and secular morality. Whatever pronouncement the Court makes in the case at bar should be understood only in this realm where it has authority. More concretely, should the Court declare respondent’s conduct as immoral and hold her administratively liable, the Court will be holding that in the realm of public morality, her conduct is reprehensible or there are state interests overriding her religious freedom. For as long as her conduct is being judged within this realm, she will be accountable to the state. But in so ruling, the Court does not and cannot say that her conduct should be made reprehensible in the realm of her church where it is presently sanctioned and that she

is answerable for her immorality to her Jehovah God nor that other religions prohibiting her conduct are correct. On the other hand, should the Court declare her conduct permissible, the Court will be holding that under her unique circumstances, public morality is not offended or that upholding her religious freedom is an interest higher than upholding public morality thus her conduct should not be penalized. But the Court is not ruling that the tenets and practice of her religion are correct nor that other churches which do not allow respondent’s conjugal arrangement should likewise allow such conjugal arrangement or should not find anything immoral about it and therefore members of these churches are not answerable for immorality to their Supreme Being. The Court cannot speak more than what it has authority to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire about the truth of religious beliefs. Similarly, in Fonacier, this Court declared that matters dealing with "faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church…are unquestionably ecclesiastical matters which are outside the province of the civil courts."444 But while the state, including the Court, accords such deference to religious belief and exercise which enjoy protection under the religious clauses, the social contract and the constitutional order are designed in such a way that when religious belief flows into speech and conduct that step out of the religious sphere and overlap with the secular and public realm, the state has the power to regulate, prohibit and penalize these expressions and embodiments of belief insofar as they affect the interests of the state. The state’s inroad on religion exercise in excess of this constitutional design is prohibited by the religion clauses; the Old World, European and American history narrated above bears out the wisdom of this proscription. Having distinguished between public and secular morality and religious morality, the more difficult task is determining which immoral acts under this public and secular morality fall under the phrase "disgraceful and immoral conduct" for which a government employee may be held administratively liable. The line is not easy to draw for it is like "a line that divides land and sea, a coastline of irregularities and indentations."445 But the case at bar does not require us to comprehensively delineate between those immoral acts for which one may be held administratively liable and those to which administrative liability does not attach. We need not concern ourselves in this case therefore whether "laziness, gluttony, vanity, selfishness, avarice and cowardice" are immoral acts which constitute grounds for administrative liability. Nor need we expend too much energy grappling with the propositions that not all immoral acts are illegal or not all illegal acts are immoral, or different jurisdictions have different standards of morality as discussed by the dissents and separate opinions, although these observations and propositions are true and correct. It is certainly a fallacious argument that because there are exceptions to the general rule that the "law is the witness and deposit of our moral life," then the rule is not true; in fact, that there are exceptions only affirms the truth of the rule. Likewise, the observation that morality is relative in different jurisdictions only affirms the truth that there is morality in a particular jurisdiction; without, however, discounting the truth that underneath the moral relativism are certain moral absolutes such as respect for life and truthtelling, without which no society will survive. Only one conduct is in question before this Court, i.e., the conjugal arrangement of a government employee whose partner is legally married to another which Philippine law and jurisprudence consider both immoral and illegal. Lest the Court inappropriately engage in the impossible task of prescribing comprehensively how one ought to live, the Court must focus its attention upon the sole conduct in question before us. In interpreting "disgraceful and immoral conduct," the dissenting opinion of Mme. Justice Ynares-Santiago groped for standards of morality and stated that the "ascertainment of what is moral or immoral calls for the discovery of contemporary community standards" but did not articulate how these standards are to be ascertained. Instead, it held that, "(f)or those in the service of the Government, provisions of law and court precedents . . . have to be considered." It identified the Civil Service Law and the laws on adultery and concubinage as laws which respondent’s conduct has offended and cited a string of precedents where a government employee was found guilty of committing a "disgraceful and immoral conduct" for maintaining illicit relations and was thereby penalized. As stated above, there is no dispute that under settled jurisprudence, respondent’s conduct constitutes "disgraceful and immoral conduct." However, the cases cited by the dissent do not involve the defense of religious freedom which respondent in the case at bar invokes. Those cited cases cannot therefore serve as precedents in settling the issue in the case at bar. Mme. Justice Ynares-Santiago’s dissent also cites Cleveland v. United States446 in laying down the standard of morality, viz: "(w)hether an act is immoral within the meaning of the statute is not to be determined by respondent’s concept of morality. The law provides the standard; the offense is complete if respondent intended to perform, and did in fact perform, the act which it condemns." The Mann Act under consideration in the Cleveland case declares as an offense the transportation in interstate commerce of "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose."447 The resolution of that case hinged on the interpretation of the phrase "immoral purpose." The U.S. Supreme Court held that the petitioner Mormons’

act of transporting at least one plural wife whether for the purpose of cohabiting with her, or for the purpose of aiding another member of their Mormon church in such a project, was covered by the phrase "immoral purpose." In so ruling, the Court relied on Reynolds which held that the Mormons’ practice of polygamy, in spite of their defense of religious freedom, was "odious among the northern and western nations of Europe,"448 "a return to barbarism,"449 "contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world,"450 and thus punishable by law. The Cleveland standard, however, does not throw light to the issue in the case at bar. The pronouncements of the U.S. Supreme Court that polygamy is intrinsically "odious" or "barbaric" do not apply in the Philippines where Muslims, by law, are allowed to practice polygamy. Unlike in Cleveland, there is no jurisprudence in Philippine jurisdiction holding that the defense of religious freedom of a member of the Jehovah’s Witnesses under the same circumstances as respondent will not prevail over the laws on adultery, concubinage or some other law. We cannot summarily conclude therefore that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable by law. While positing the view that the resolution of the case at bar lies more on determining the applicable moral standards and less on religious freedom, Mme. Justice YnaresSantiago’s dissent nevertheless discussed respondent’s plea of religious freedom and disposed of this defense by stating that "(a) clear and present danger of a substantive evil, destructive to public morals, is a ground for the reasonable regulation of the free exercise and enjoyment of religious profession. (American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In addition to the destruction of public morals, the substantive evil in this case is the tearing down of morality, good order, and discipline in the judiciary." However, the foregoing discussion has shown that the "clear and present danger" test that is usually employed in cases involving freedom of expression is not appropriate to the case at bar which involves purely religious conduct. The dissent also cites Reynolds in supporting its conclusion that respondent is guilty of "disgraceful and immoral conduct." The Reynolds ruling, however, was reached with a strict neutrality approach, which is not the approach contemplated by the Philippine constitution. As discussed above, Philippine jurisdiction adopts benevolent neutrality in interpreting the religion clauses. In the same vein, Mr. Justice Carpio’s dissent which employs strict neutrality does not reflect the constitutional intent of employing benevolent neutrality in interpreting the Philippine religion clauses. His dissent avers that respondent should be held administratively liable not for "disgraceful and immoral conduct" but "conduct prejudicial to the best interest of the service" as she is a necessary co-accused of her partner in concubinage. The dissent stresses that being a court employee, her open violation of the law is prejudicial to the administration of justice. Firstly, the dissent offends due process as respondent was not given an opportunity to defend herself against the charge of "conduct prejudicial to the best interest of the service." In addition, there is no evidence of the alleged prejudice to the best interest of the service. Most importantly, the dissent concludes that respondent’s plea of religious freedom cannot prevail without so much as employing a test that would balance respondent’s religious freedom and the state’s interest at stake in the case at bar. The foregoing discussion on the doctrine of religious freedom, however, shows that with benevolent neutrality as a framework, the Court cannot simply reject respondent’s plea of religious freedom without even subjecting it to the "compelling state interest" test that would balance her freedom with the paramount interests of the state. The strict neutrality employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu decided before the 1935 Constitution which unmistakably shows adherence to benevolent neutrality - is not contemplated by our constitution. Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik451 cited in Mr. Justice Carpio’s dissent decisive of the immorality issue in the case at bar. In that case, the Court dismissed the charge of immorality against a Tausug judge for engaging in an adulterous relationship with another woman with whom he had three children because "it (was) not ‘immoral’ by Muslim standards for Judge Malik to marry a second time while his first marriage (existed)." Putting the quoted portion in its proper context would readily show that the Sulu Islamic case does not provide a precedent to the case at bar. Immediately prior to the portion quoted by the dissent, the Court stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, provides that the penal laws relative to the crime of bigamy ‘shall not apply to a person married x x x under Muslim Law,’ it is not ‘immoral’ by Muslim standards for Judge Malik to marry a second time while his first marriage exists."452 It was by law, therefore, that the Muslim conduct in question was classified as an exception to the crime of bigamy and thus an exception to the general standards of morality. The constitutionality of P.D. No. 1083 when measured against the Establishment Clause was not raised as an issue in the Sulu Islamic case. Thus, the Court did not determine whether P.D. No. 1083 suffered from a constitutional infirmity and instead relied on the provision excepting the challenged

Muslim conduct from the crime of bigamy in holding that the challenged act is not immoral by Muslim standards. In contradistinction, in the case at bar, there is no similar law which the Court can apply as basis for treating respondent’s conduct as an exception to the prevailing jurisprudence on illicit relations of civil servants. Instead, the Free Exercise Clause is being invoked to justify exemption. B. Application of Benevolent Compelling State Interest Test to the Case at Bar

Neutrality

and

the

The case at bar being one of first impression, we now subject the respondent’s claim of religious freedom to the "compelling state interest" test from a benevolent neutrality stance - i.e. entertaining the possibility that respondent’s claim to religious freedom would warrant carving out an exception from the Civil Service Law; necessarily, her defense of religious freedom will be unavailing should the government succeed in demonstrating a more compelling state interest. In applying the test, the first inquiry is whether respondent’s right to religious freedom has been burdened. There is no doubt that choosing between keeping her employment and abandoning her religious belief and practice and family on the one hand, and giving up her employment and keeping her religious practice and family on the other hand, puts a burden on her free exercise of religion. In Sherbert, the Court found that Sherbert’s religious exercise was burdened as the denial of unemployment benefits "forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." The burden on respondent in the case at bar is even greater as the price she has to pay for her employment is not only her religious precept but also her family which, by the Declaration Pledging Faithfulness, stands "honorable before God and men." The second step is to ascertain respondent’s sincerity in her religious belief. Respondent appears to be sincere in her religious belief and practice and is not merely using the "Declaration of Pledging Faithfulness" to avoid punishment for immorality. She did not secure the Declaration only after entering the judiciary where the moral standards are strict and defined, much less only after an administrative case for immorality was filed against her. The Declaration was issued to her by her congregation after ten years of living together with her partner, Quilapio, and ten years before she entered the judiciary. Ministers from her congregation testified on the authenticity of the Jehovah’s Witnesses’ practice of securing a Declaration and their doctrinal or scriptural basis for such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to make the "union" of their members under respondent’s circumstances "honorable before God and men." It is also worthy of notice that the Report and Recommendation of the investigating judge annexed letters453 of the OCA to the respondent regarding her request to be exempt from attending the flag ceremony after Circular No. 62-2001 was issued requiring attendance in the flag ceremony. The OCA’s letters were not submitted by respondent as evidence but annexed by the investigating judge in explaining that he was caught in a dilemma whether to find respondent guilty of immorality because the Court Administrator and Deputy Court Administrator had different positions regarding respondent’s request for exemption from the flag ceremony on the ground of the Jehovah’s Witnesses’ contrary belief and practice. Respondent’s request for exemption from the flag ceremony shows her sincerity in practicing the Jehovah’s Witnesses’ beliefs and not using them merely to escape punishment. She is a practicing member of the Jehovah’s Witnesses and the Jehovah ministers testified that she is a member in good standing. Nevertheless, should the government, thru the Solicitor General, want to further question the respondent’s sincerity and the centrality of her practice in her faith, it should be given the opportunity to do so. The government has not been represented in the case at bar from its incipience until this point. In any event, even if the Court deems sufficient respondent’s evidence on the sincerity of her religious belief and its centrality in her faith, the case at bar cannot still be decided using the "compelling state interest" test. The case at bar is one of first impression, thus the parties were not aware of the burdens of proof they should discharge in the Court’s use of the "compelling state interest" test. We note that the OCA found respondent’s defense of religious freedom unavailing in the face of the Court’s ruling in Dicdican v. Fernan, et al., viz: It bears emphasis that the image of a court of justice is mirrored in the conduct, official and otherwise, of the personnel who work thereat, from the judge to the lowest of its personnel. Court personnel have been enjoined to adhere to the exacting standards of morality and decency in their professional and private conduct in order to preserve the good name and integrity of the courts of justice.

It is apparent from the OCA’s reliance upon this ruling that the state interest it upholds is the preservation of the integrity of the judiciary by maintaining among its ranks a high standard of morality and decency. However, there is nothing in the OCA’s memorandum to the Court that demonstrates how this interest is so compelling that it should override respondent’s plea of religious freedom nor is it shown that the means employed by the government in pursuing its interest is the least restrictive to respondent’s religious exercise. Indeed, it is inappropriate for the complainant, a private person, to present evidence on the compelling interest of the state. The burden of evidence should be discharged by the proper agency of the government which is the Office of the Solicitor General. To properly settle the issue in the case at bar, the government should be given the opportunity to demonstrate the compelling state interest it seeks to uphold in opposing the respondent’s stance that her conjugal arrangement is not immoral and punishable as it comes within the scope of free exercise protection. Should the Court prohibit and punish her conduct where it is protected by the Free Exercise Clause, the Court’s action would be an unconstitutional encroachment of her right to religious freedom.454 We cannot therefore simply take a passing look at respondent’s claim of religious freedom, but must instead apply the "compelling state interest" test. The government must be heard on the issue as it has not been given an opportunity to discharge its burden of demonstrating the state’s compelling interest which can override respondent’s religious belief and practice. To repeat, this is a case of first impression where we are applying the "compelling state interest" test in a case involving purely religious conduct. The careful application of the test is indispensable as how we will decide the case will make a decisive difference in the life of the respondent who stands not only before the Court but before her Jehovah God. IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor General is ordered to intervene in the case where it will be given the opportunity (a) to examine the sincerity and centrality of respondent’s claimed religious belief and practice; (b) to present evidence on the state’s "compelling interest" to override respondent’s religious belief and practice; and (c) to show that the means the state adopts in pursuing its interest is the least restrictive to respondent’s religious freedom. The rehearing should be concluded thirty (30) days from the Office of the Court Administrator’s receipt of this Decision. SO ORDERED. Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ., concur. Bellosillo and Vitug, JJ., please see separate opinion. Ynares-Santiago, and Carpio, JJ., see dissenting opinion. Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting opinion of J. Carpio. Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.

EN BANC G.R. No. 153888 July 9, 2003 ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., herein represented by PROF. ABDULRAFIH H. SAYEDY, petitioner, vs. OFFICE OF THE EXECUTIVE SECRETARY of the Office of the President of the Philippines, herein represented by HON. ALBERTO G. ROMULO, Executive Secretary, and the OFFICE ON MUSLIM AFFAIRS, herein represented by its Executive Director, HABIB MUJAHAB HASHIM, respondents. CORONA, J.: Before us is a petition for prohibition filed by petitioner Islamic Da'wah Council of the Philippines, Inc. (IDCP) praying for the declaration of nullity of Executive Order (EO) 46, s. 2001 and the prohibition of herein respondents Office of the Executive Secretary and Office of Muslim Affairs (OMA) from implementing the subject EO. Petitioner IDCP, a corporation that operates under Department of Social Welfare and Development License No. SB-01-085, is a non-governmental organization that extends voluntary services to the Filipino people, especially to Muslim communities. It claims to be a federation of national Islamic organizations and an active member of international organizations such as the Regional Islamic Da'wah Council of Southeast Asia and the Pacific (RISEAP)1 and The World Assembly of Muslim Youth. The RISEAP accredited petitioner to issue halal2certifications in the Philippines. Thus, among the functions petitioner carries out is to conduct seminars, orient manufacturers on halal food and issue halal certifications to qualified products and manufacturers. Petitioner alleges that, on account of the actual need to certify food products as halal and also due to halal food producers' request, petitioner formulated in 1995 internal rules and procedures based on the Qur'an3 and the Sunnah4 for the analysis of food, inspection thereof and issuance of halal certifications. In that same year, petitioner began to issue, for a fee, certifications to qualified products and food manufacturers. Petitioner even adopted for use on its halal certificates a distinct sign or logo registered in the Philippine Patent Office under Patent No. 4-2000-03664. On October 26, 2001, respondent Office of the Executive Secretary issued EO 465 creating the Philippine Halal Certification Scheme and designating respondent OMA to oversee its implementation. Under the EO, respondent OMA has the exclusive authority to issue halal certificates and perform other related regulatory activities. On May 8, 2002, a news article entitled "OMA Warns NGOs Issuing Illegal 'Halal' Certification" was published in the Manila Bulletin, a newspaper of general circulation. In said article, OMA warned Muslim consumers to buy only products with its official halal certification since those without said certification had not been subjected to careful analysis and therefore could contain pork or its derivatives. Respondent OMA also sent letters to food manufacturers asking them to secure the halal certification only from OMA lest they violate EO 46 and RA 4109.6 As a result, petitioner lost revenues after food manufacturers stopped securing certifications from it.

Sec. 15. The State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means. People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership, and structure. Sec. 16. The rights of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate, the establishment of adequate consultation mechanisms. According to petitioner, the subject EO was issued with utter haste and without even consulting Muslim people's organizations like petitioner before it became effective. We grant the petition. OMA was created in 1981 through Executive Order No. 697 (EO 697) "to ensure the integration of Muslim Filipinos into the mainstream of Filipino society with due regard to their beliefs, customs, traditions, and institutions."8 OMA deals with the societal, legal, political and economic concerns of the Muslim community as a "national cultural community" and not as a religious group. Thus, bearing in mind the constitutional barrier between the Church and State, the latter must make sure that OMA does not intrude into purely religious matters lest it violate the non-establishment clause and the "free exercise of religion" provision found in Article III, Section 5 of the 1987 Constitution.9 Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has consistently affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good."10 Without doubt, classifying a food product as halal is a religious function because the standards used are drawn from the Qur'an and Islamic beliefs. By giving OMA the exclusive power to classify food products as halal, EO 46 encroached on the religious freedom of Muslim organizations like herein petitioner to interpret for Filipino Muslims what food products are fit for Muslim consumption. Also, by arrogating to itself the task of issuing halal certifications, the State has in effect forced Muslims to accept its own interpretation of the Qur'an and Sunnah on halal food. To justify EO 46's intrusion into the subject religious activity, the Solicitor General argues that the freedom of religion is subservient to the police power of the State. By delegating to OMA the authority to issue halal certifications, the government allegedly seeks to protect and promote the muslim Filipinos' right to health, and to instill health consciousness in them.

Hence, this petition for prohibition. We disagree. Petitioner contends that the subject EO violates the constitutional provision on the separation of Church and State.7It is unconstitutional for the government to formulate policies and guidelines on the halal certification scheme because said scheme is a function only religious organizations, entity or scholars can lawfully and validly perform for the Muslims. According to petitioner, a food product becomes halal only after the performance of Islamic religious ritual and prayer. Thus, only practicing Muslims are qualified to slaughter animals for food. A government agency like herein respondent OMA cannot therefore perform a religious function like certifying qualified food products as halal. Petitioner also maintains that the respondents violated Section 10, Article III of the 1987 Constitution which provides that "(n)o law impairing the obligation of contracts, shall be passed." After the subject EO was implemented, food manufacturers with existing contracts with petitioner ceased to obtain certifications from the latter. Moreover, petitioner argues that the subject EO violates Sections 15 and 16 of Article XIII of the 1987 Constitution which respectively provide: ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS

Only the prevention of an immediate and grave danger to the security and welfare of the community can justify the infringement of religious freedom.11 If the government fails to show the seriousness and immediacy of the threat, State intrusion is constitutionally unacceptable. In a society with a democratic framework like ours, the State must minimize its interference with the affairs of its citizens and instead allow them to exercise reasonable freedom of personal and religious activity. In the case at bar, we find no compelling justification for the government to deprive muslim organizations, like herein petitioner, of their religious right to classify a product as halal, even on the premise that the health of muslim Filipinos can be effectively protected by assigning to OMA the exclusive power to issue halal certifications. The protection and promotion of the muslim Filipinos' right to health are already provided for in existing laws and ministered to by government agencies charged with ensuring that food products released in the market are fit for human consumption, properly labeled and safe. Unlike EO 46, these laws do not encroach on the religious freedom of muslims. Section 48(4) of the Administrative Code of 1987 gives to the National Meat Inspection Commission (NMIC) of the Department of Agriculture (DOA) the power to inspect slaughtered animals intended for human consumption to ensure the safety of the

meat released in the market. Another law, RA 7394, otherwise known as "The Consumer Act of 1992," gives to certain government departments the duty to protect the interests of the consumer, promote his general welfare and to establish standards of conduct for business and industry.12 To this end, a food product, before its distribution to the market, is required to secure the Philippine Standard Certification Mark after the concerned department inspects and certifies its compliance with quality and safety standards.13 One such government agency designated by RA 7394 is the Bureau of Food and Drugs (BFD) of the Department of Health (DOH). Under Article 22 of said law, BFD has the duty to promulgate and enforce rules and regulations fixing and establishing a reasonable definition and standard of identity, a standard of quality and a standard of fill of containers for food. The BFD also ensures that food products released in the market are not adulterated.14 Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry (DTI) is tasked to protect the consumer against deceptive, unfair and unconscionable sales acts or practices as defined in Article 50.15 DTI also enforces compulsory labeling and fair packaging to enable the consumer to obtain accurate information as to the nature, quality and quantity of the contents of consumer products and to facilitate his comparison of the value of such products.16 With these regulatory bodies given detailed functions on how to screen and check the quality and safety of food products, the perceived danger against the health of muslim and non-muslim Filipinos alike is totally avoided. Of great help are the provisions on labeling of food products (Articles 74 to 85)17 of RA 7394. In fact, through these labeling provisions, the State ably informs the consuming public of the contents of food products released in the market. Stiff sanctions are imposed on violators of said labeling requirements. Through the laws on food safety and quality, therefore, the State indirectly aids muslim consumers in differentiating food from non-food products. The NMIC guarantees that the meat sold in the market has been thoroughly inspected and fit for consumption. Meanwhile, BFD ensures that food products are properly categorized and have passed safety and quality standards. Then, through the labeling provisions enforced by the DTI, muslim consumers are adequately apprised of the products that contain substances or ingredients that, according to their Islamic beliefs, are not fit for human intake. These are the non-secular steps put in place by the State to ensure that the muslim consumers' right to health is protected. The halal certifications issued by petitioner and similar organizations come forward as the official religious approval of a food product fit for muslim consumption. We do not share respondents' apprehension that the absence of a central administrative body to regulate halal certifications might give rise to schemers who, for profit, will issue certifications for products that are not actually halal. Aside from the fact that muslim consumers can actually verify through the labels whether a product contains non-food substances, we believe that they are discerning enough to know who the reliable and competent certifying organizations in their community are. Before purchasing a product, they can easily avert this perceived evil by a diligent inquiry on the reliability of the concerned certifying organization. WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2000, is hereby declared NULL AND VOID. Consequently, respondents are prohibited from enforcing the same. SO ORDERED. Davide, Jr., C .J ., Bellosillo, Panganiban, Ynares-Santiago, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr ., Azcuna and Tinga, JJ., concur. Quisumbing and Sandoval-Gutierrez, JJ ., on official leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45459 March 13, 1937 GREGORIO AGLIPAY, petitioner, vs. JUAN RUIZ, respondent. Vicente Sotto for petitioner. Office of the Solicitor-General Tuason for respondent. LAUREL, J.: The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks the issuance from this court of a writ of prohibition to prevent the respondent Director of Posts from issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress. In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues of postage stamps commemorating the celebration in the City of Manila of the Thirty-third international Eucharistic Congress, organized by the Roman Catholic Church. The petitioner, in the fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq., member of the Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest of the petitioner's attorney, the respondent publicly announced having sent to the United States the designs of the postage stamps for printing as follows: "In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are blue, green, brown, cardinal red, violet and orange, 1 inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were actually issued and sold though the greater part thereof, to this day, remains unsold. The further sale of the stamps is sought to be prevented by the petitioner herein. The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the instant case, although he admits that the writ may properly restrain ministerial functions. While, generally, prohibition as an extraordinary legal writ will not issue to restrain or control the performance of other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and enforcement are regulated by statute and in this jurisdiction may issue to . . . inferior tribunals, corporations, boards, or persons, whether excercising functions judicial or ministerial, which are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to "functions" in the statute are undoubtedly comprehensive and include the challenged act of the respondent Director of Posts in the present case, which act because alleged to be violative of the Constitution is a fortiorari "without or in excess of . . . jurisdiction." The statutory rule, therefore, in the jurisdiction is that the writ of prohibition is not confined exclusively to courts or tribunals to keep them within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without or in excess of his authority. Not infrequently, "the writ is granted, where it is necessary for the orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.) The more important question raised refers to the alleged violation of the Constitution by the respondent in issuing and selling postage stamps commemorative of the Thirtythird International Eucharistic Congress. It is alleged that this action of the respondent is violative of the provisions of section 23, subsection 3, Article VI, of the Constitution of the Philippines, which provides as follows: No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, secretarian, institution, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium. The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to

both, for ocassions might arise when the estate will use the church, and the church the state, as a weapon in the furtherance of their recognized this principle of separation of church and state in the early stages of our constitutional development; it was inserted in the Treaty of Paris between the United States and Spain of December 10, 1898, reiterated in President McKinley's Instructions of the Philippine Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act of August 29, 1916, and finally embodied in the constitution of the Philippines as the supreme expression of the Filipino people. It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere religious toleration. Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. Our Constitution and laws exempt from taxation properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest, preacher, minister or other religious teacher or dignitary as such is assigned to the armed forces or to any penal institution, orphanage or leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious instruction in the public schools is by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays and made legal holidays (sec. 29, Adm. Code) because of the secular idea that their observance is conclusive to beneficial moral results. The law allows divorce but punishes polygamy and bigamy; and certain crimes against religious worship are considered crimes against the fundamental laws of the state (see arts. 132 and 133, Revised Penal Code). In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in question under the provisions of Act No. 4052 of the Philippine Legislature. This Act is as follows: No. 4052. — AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER PURPOSES. Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and by the authority of the same: SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately available out of any funds in the Insular Treasury not otherwise appropriated, for the costs of plates and printing of postage stamps with new designs, and other expenses incident thereto. SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and Communications, is hereby authorized to dispose of the whole or any portion of the amount herein appropriated in the manner indicated and as often as may be deemed advantageous to the Government. SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury. SEC. 4. This act shall take effect on its approval. Approved, February 21, 1933.

It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and printing of postage stamps with new designs and other expenses incident thereto, and authorizes the Director of Posts, with the approval of the Secretary of Public Works and Communications, to dispose of the amount appropriated in the manner indicated and "as often as may be deemed advantageous to the Government". The printing and issuance of the postage stamps in question appears to have been approved by authority of the President of the Philippines in a letter dated September 1, 1936, made part of the respondent's memorandum as Exhibit A. The respondent alleges that the Government of the Philippines would suffer losses if the writ prayed for is granted. He estimates the revenue to be derived from the sale of the postage stamps in question at P1,618,17.10 and states that there still remain to be sold stamps worth P1,402,279.02. Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the discretionary power to determine when the issuance of special postage stamps would be "advantageous to the Government." Of course, the phrase "advantageous to the Government" does not authorize the violation of the Constitution. It does not authorize the appropriation, use or application of public money or property for the use, benefit or support of a particular sect or church. In the present case, however, the issuance of the postage stamps in question by the Director of Posts and the Secretary of Public Works and Communications was not inspired by any sectarian denomination. The stamps were not issue and sold for the benefit of the Roman Catholic Church. Nor were money derived from the sale of the stamps given to that church. On the contrary, it appears from the latter of the Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's complaint, that the only purpose in issuing and selling the stamps was "to advertise the Philippines and attract more tourist to this country." The officials concerned merely, took advantage of an event considered of international importance "to give publicity to the Philippines and its people" (Letter of the Undersecretary of Public Works and Communications to the President of the Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note that the stamps as actually designed and printed (Exhibit 2), instead of showing a Catholic Church chalice as originally planned, contains a map of the Philippines and the location of the City of Manila, and an inscription as follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7,1937." What is emphasized is not the Eucharistic Congress itself but Manila, the capital of the Philippines, as the seat of that congress. It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordinate to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.) We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate the complete separation of church and state and curb any attempt to infringe by indirection a constitutional inhibition. Indeed, in the Philippines, once the scene of religious intolerance and prescription, care should be taken that at this stage of our political development nothing is done by the Government or its officials that may lead to the belief that the Government is taking sides or favoring a particular religious sect or institution. But, upon very serious reflection, examination of Act No. 4052, and scrutiny of the attending circumstances, we have come to the conclusion that there has been no constitutional infraction in the case at bar, Act No. 4052 grants the Director of Posts, with the approval of the Secretary of Public Works and Communications, discretion to misuse postage stamps with new designs "as often as may be deemed advantageous to the Government." Even if we were to assume that these officials made use of a poor judgment in issuing and selling the postage stamps in question still, the case of the petitioner would fail to take in weight. Between the exercise of a poor judgment and the unconstitutionality of the step taken, a gap exists which is yet to be filled to justify the court in setting aside the official act assailed as coming within a constitutional inhibition. The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So ordered. Avanceña, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.

EN BANC March 7, 2017 A.M. No. 10-4-19-SC RE: LETTER OF TONY Q. V ALENCIANO, HOLDING OF RELIGIOUS RITUALS AT THE HALL OF JUSTICE BUILDING IN QUEZON CITY RESOLUTION

In his 1st Indorsement,6 dated May 27, 2009, Chief Justice Puno referred another letter of Valenciano, dated May 13, 2009, to DCA Dujua for appropriate action, as he complained that masses continued to be held at the basement of the QC Hall of Justice. On March 23, 2010, Valenciano wrote another letter,7 praying that rules be promulgated by the Court to put a stop to the holding of Catholic masses, or any other religious rituals, at the QC Hall of Justice and in all other halls of justice in the country.

MENDOZA, J.: One of our fundamental differences lies in our chosen religion. Some put their faith in a god different from ours, while some may not believe in a god at all. Nevertheless, despite the inconveniences this difference may cause us, we must accept it unconditionally for only upon acceptance of the fact that we are different from each other will we learn to respect one another. This controversy originated from a series of letters, written by Tony Q. Valenciano (Valenciano) and addressed to then Chief Justice Reynato S. Puno (Chief Justice Puno). In his first Letter,1 dated January 6, 2009, Valenciano reported that the basement of the Hall of Justice of Quezon City (QC) had been converted into a Roman Catholic Chapel, complete with offertory table, images of Catholic religious icons, a canopy, an electric organ, and a projector. He believed that such practice violated the constitutional provision on the separation of Church and State and the constitutional prohibition against the appropriation of public money or property for the benefit of a sect, church, denomination, or any other system of religion. Valenciano further averred that the holding of masses at the basement of the QC Hall of Justice showed that it tended to favor Catholic litigants; that the rehearsals of the choir caused great disturbance to other employees; that the public could no longer use the basement as resting place; that the employees and litigants of the Public Attorney's Office (PAO), Branches 82 and 83 of the Regional Trial Court (RTC), Legal Library, Philippine Mediation Center, and Records Section of the Office of the Clerk of Court (OCC) could not attend to their personal necessities such as going to the lavatories because they could not traverse the basement between 12:00 o'clock noontime and 1: 15 o'clock in the afternoon; that the court employees became hostile toward each other as they vied for the right to read the epistle; and that the water supply in the entire building was cut off during the mass because the generator was turned off to ensure silence. In his 1st Indorsement,2 dated February 6, 2009, Chief Justice Puno referred Valenciano 's letter to then Deputy Court Administrator (DCA) and Officer-in-Charge of the Office on Halls of Justice, Antonio H. Dujua (DCA Dujua). In turn, DCA Dujua, in his 1st Indorsement,3 dated February 11, 2009, referred the letter to Executive Judge Teodoro A. Bay (Judge Bay) of the RTC and to Executive Judge Luis Zenon Q. Maceren (Judge Maceren) of the Metropolitan Trial Court (MeTC) for their respective comments. In his March 6, 2009 Letter,4 addressed to DCA Dujua, Judge Maceren clarified that the basement of the QC Hall of Justice was known as the prayer corner. He opined that the use of the said area for holding masses did not violate the constitutional prohibition against the use of public property for religious purposes because the religious character of such use was merely incidental to a temporary use. In his Memorandum,5 dated March 10, 2009, Judge Bay manifested that he was due to compulsorily retire on April 29, 2009, and he was taking a leave of absence prior to such date to concentrate in resolving cases submitted for decision before his sala and requested that then Vice-Executive Judge Jaime N. Salazar (Judge Salazar) be assigned to further investigate, study, and make recommendations on the matter raised by Valenciana. In the meantime, Judge Bay recommended that, pending the final resolution of the case, daily masses be permitted to continue, provided that: (1) the mass be limited to thirty (30) minutes; (2) no loud singing be allowed so as not to disturb others; and (3) the inconveniences caused by the mass be addressed.

In its June 22, 2010 Resolution,8 the Court noted the March 23, 2010 letter of Valenciano and referred the matter to the Office of the Court Administrator (OCA) for evaluation, report and recommendation. Thus, in its 1st Indorsement,9 dated September 6, 2010, the OCA, through then Assistant Court Administrator (ACA) Jenny Lind R. AldecoaDelorino (now Deputy Court Administrator), referred the letters of Valenciano to the incumbent RTC Executive Judge Fernando T. Sagun, Jr. (Judge Sagun, Jr.) and incumbent MeTC Executive Judge Caridad M. WalseLutero (Judge Lutero). In his Letter-Comment,10 dated September 9, 2010, Judge Sagun, Jr. informed the Court that his office had already implemented measures to address Valenciano's complaints. He reported that masses were shortened to a little over thirty (30) minutes; that it was only during special holy days of obligation when the celebration of mass went beyond one (1) o'clock in the afternoon; that the pathways leading to the lavatories were open and could be used without obstruction; that there was never an instance where the actions of court personnel, who were vying to read the epistle during mass, caused back-biting and irritation among themselves; that the water generator had been broken beyond repair and decommissioned since December 2009; and that the court employees prepared for the mass before the day officially started, so that the performance of their official duties in court was not hampered. In her letter,11 Judge Lutero reported that Catholic masses were being held only during lunch breaks and did not disturb court proceedings; that the basement of the QC Hall of Justice could still be used as waiting area for the public; that court personnel and the public were never physically prevented from reaching the lavatories during mass as there was a clear path from the public offices leading to the comfort rooms; that water service interruptions were caused by maintenance problems and not because the water pump was being shut off during mass; and that the elevators could not be used during mass because elevator attendants took their lunch break from twelve (12) o'clock to one (1) o'clock in the afternoon. Judge Lutero opined that it is not the conduct of masses in public places which the Constitution prohibited, but the passage of laws or the use of public funds for the purpose of establishing a religion or prohibiting the free exercise thereof. She conveyed the fact that no law or rule had been passed and that no public funds had been appropriated or used to support the celebration of masses. She added that the holding of Catholic masses did not mean that Catholics had better chances of obtaining favorable resolutions from the court. Accordingly, Judge Lutero recommended that the holding of masses at the basement of the QC Hall of Justice be allowed to continue considering that it was not inimical to the interests of the court employees and the public. The and Recommendation

OCA

Report

In its Memorandum,12 dated August 7, 2014, the OCA believed that the practical inconveniences cited by Valenciano were unfounded. It, thus, recommended that his letter-complaints, dated January 6, 2009, May 13, 2009 and March 23, 2010, be dismissed for lack of merit and that the RTC and MeTC Executive Judges of QC be directed to closely regulate and monitor the holding of masses and other religious practices within the premises of the QC Hall of Justice.1âwphi1 The OCA opined that the principle of separation of Church and State, particularly with reference to the Establishment Clause, ought not to be interpreted according to the rigid standards of separation; that the neutrality of the State on religion should be benevolent because religion was an ingrained part of society and played an important role in it; and that the State, therefore, instead of being belligerent (in the case of Strict Separation) or being aloof (in the case of Strict Neutrality) towards religion should instead interact and forbear.13

The OCA advanced the view that the standard of Benevolent Neutrality/Accommodation was espoused because the principal religion clauses in our Constitution were not limited to the Establishment Clause, which created a wall between the Church and the State, but was quickly followed by the declaration of the Free Exercise Clause, which protected the right of the people to practice their religion. In effect, the standard of Benevolent Neutrality/Accommodation balanced the interest of the State through the Establishment Clause, and the interest and right of the individual to freely exercise his religion as guaranteed by the Free Exercise Clause.14 The OCA observed that the present controversy did not involve a national or local law or regulation in conflict with the Free Exercise Clause. On the contrary, Valenciano was merely questioning the propriety of holding religious masses at the basement of the QC Hall of Justice, which was nothing more than an issue of whether the said religious practice could be accommodated or not. It ended up concluding that based on prevailing jurisprudence, as well as the interpretations given to the religion clauses of the 1987 Constitution, there was nothing constitutionally abhorrent in allowing the continuation of the masses.15 The OCA added that by allowing or accommodating the celebration of Catholic masses within the premises of the QC Hall of Justice, the Court could not be said to have established Roman Catholicism as an official religion or to have endorsed the said religion, for the reason that it also allowed other religious denominations to practice their religion within the courthouses.16 ISSUE WHETHER THE HOLDING OF MASSES AT THE BASEMENT OF THE QUEZON CITY HALL OF JUSTICE VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE AS WELL AS THE CONSTITUTIONAL PROHIBITION AGAINST APPROPRIATION OF PUBLIC MONEY OR PROPERTY FOR THE BENEFIT OF ANY SECT, CHURCH, DENOMINATION, SECTARIAN INSTITUTION, OR SYSTEM OF RELIGION. The Court's Ruling The Court agrees with the findings and recommendation of the OCA and denies the prayer of Valenciano that the holding of religious rituals of any of the world's religions in the QC Hall of Justice or any halls of justice all over the country be prohibited. The Rituals in does not Church and State

Holding the Amount

of Halls to

of a

Union

Religious Justice of

As earlier stated, Valenciano is against the holding of religious rituals in the halls of justice on the ground that it violates the constitutional provision on the separation of Church and State and the constitutional prohibition against the appropriation of public money or property for the benefit of a sect, church, denomination, or any other system of religion. Indeed, Section 6, Article II of the 1987 Constitution provides: The separation of Church and State shall be inviolable.17 The Court once pronounced that "our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a weapon in the furtherance of their respective ends and aims."18 Justice Isagani Cruz expounded on this doctrine, viz.: The rationale of the rule is summed up in the familiar saying, "Strong fences make good neighbors." The idea is to delineate the boundaries between the two institutions and, thus, avoid encroachments by one against the other because of a misunderstanding of the limits of their respective exclusive jurisdictions. The demarcation line calls on the entities to "render therefore unto Caesar the things that are Caesar's and unto God the things that are God's."19 This, notwithstanding, the State still recognizes the inherent right of the people to have some form of belief system, whether such may be belief in a Supreme Being, a certain way of life, or even an outright rejection of religion. Our very own Constitution recognizes the heterogeneity and religiosity of our people as reflected in lmbong v. Ochoa,20as follows:

At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people of diverse ethnic, cultural and religious beliefs and backgrounds. History has shown us that our government, in law and in practice, has allowed these various religious, cultural, social and racial groups to thrive in a single society together. It has embraced minority groups and is tolerant towards all - the religious people of different sects and the non-believers. The undisputed fact is that our people generally believe in a deity, whatever they conceived Him to be, and to Whom they called for guidance and enlightenment in crafting our fundamental law. Thus, the preamble of the present Constitution reads: We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution. The Filipino people in "imploring the aid of Almighty God" manifested their spirituality innate in our nature and consciousness as a people, shaped by tradition and historical experience. As this is embodied in the preamble, it means that the State recognizes with respect the influence of religion in so far as it instills into the mind the purest principles of morality. Moreover, in recognition of the contributions of religion to society, the 1935, 1973 and 1987 Constitutions contain benevolent and accommodating provisions towards religions such as tax exemption of church property, salary of religious officers in government institutions, and optional religious instructions in public schools. [Emphases supplied] In Aglipay v. Ruiz21 (Aglipay), the Court acknowledged how religion could serve as a motivating force behind each person's actions: Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. Our Constitution and laws exempt from taxation properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. Ordinance appended thereto; Assessment Law, sec. 344, par [c], Adm. Code) sectarian aid is not prohibited when a priest, preacher, minister or other religious teacher or dignitary as such is assigned to the armed forces or to any penal institution, orphanage or leprosarium xxx. Optional religious instruction in the public schools is by constitutional mandate allowed xxx. Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays are made legal holidays (sec. 29, Adm. Code) because of the secular idea that their observance is conducive to beneficial moral results. The law allows divorce but punishes polygamy and bigamy; and certain crimes against religious worship are considered crimes against the fundamental laws of the state xxx.22 [Emphasis supplied] Thus, the right to believe or not to believe has again been enshrined in Section 5, Article III of the 1987 Constitution: Section 5. xxx. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. xxx. Free Exercise Clause Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has consistently affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good."23 "The right to religious profession and worship has a two-fold aspect - freedom to believe and freedom to act on one's beliefs. The first is absolute as long as the belief is

confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare."24 Justice Isagani A. Cruz explained these two (2) concepts in this wise: (1) Freedom to Believe The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own theories about life and death; worship any god he chooses, or none at all; embrace or reject any religion; acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny the immortality of his soul - in fact, cherish any religious conviction as he and he alone sees fit. However absurd his beliefs may be to others, even if they be hostile and heretical to the majority, he has full freedom to believe as he pleases. He may not be required to prove his beliefs. He may not be punished for his inability to do so. Religion, after all, is a matter of faith. "Men may believe what they cannot prove." Every one has a right to his beliefs and he may not be called to account because he cannot prove what he believes. (2) Freedom to Act on One's Beliefs But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all other rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of others. It is error to think that the mere invocation of religious freedom will stalemate the State and render it impotent in protecting the general welfare. The inherent police power can be exercised to prevent religious practices inimical to society. And this is true even if such practices are pursued out of sincere religious conviction and not merely for the purpose of evading the reasonable requirements or prohibitions of the law. Justice Frankfurter put it succinctly: "The constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma."25 Allowing religion to flourish is not contrary to the principle of separation of Church and State. In fact, these two principles are in perfect harmony with each other. The State is aware of the existence of religious movements whose members believe in the divinity of Jose Rizal. Yet, it does not implement measures to suppress the said religious sects. Such inaction or indifference on the part of the State gives meaning to the separation of Church and State, and at the same time, recognizes the religious freedom of the members of these sects to worship their own Supreme Being. As pointed out by Judge Lutero, "the Roman Catholics express their worship through the holy mass and to stop these would be tantamount to repressing the right to the free exercise of their religion. Our Muslim brethren, who are government employees, are allowed to worship their Allah even during office hours inside their own offices. The Seventh Day Adventists are exempted from rendering Saturday duty because their religion prohibits them from working on a Saturday. Even Christians have been allowed to conduct their own bible studies in their own offices. All these have been allowed in respect of the workers' right to the free exercise of their religion. xxx"26 Clearly, allowing the citizens to practice their religion is not equivalent to a fusion of Church and State.

would suffice to prevail over the right to religious freedom as this is a fundamental .right that enjoys a preferred position in the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in order to build a just and humane society and establish a government." As held in Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed. In determining which shall prevail between the state's interest and religious liberty, reasonableness shall be the guide. The "compelling state interest" serves the purpose of revering religious liberty while at the same time affording protection to the paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test, by upholding the paramount interests of the state, seeks to protect the very state, without which, religious liberty will not be preserved.137 [Citations omitted] [Emphases supplied] As reported by the Executive Judges of Quezon City, the masses were being conducted only during noon breaks and were not disruptive of public services. The court proceedings were not being distracted or interrupted and that the performance of the judiciary employees were not being adversely affected. Moreover, no Civil Service rules were being violated. As there has been no detrimental effect on the public service or prejudice to the State, there is simply no state interest compelling enough to prohibit the exercise of religious freedom in the halls of justice. In fact, the Civil Service Commission (CSC) was more lenient or tolerant. On November 13, 1981, the CSC came out with Resolution No. 81-1277, which provided, among others, that "during Friday, the Muslim pray day, Muslims are excused from work from 10:00 o'clock in the morning to 2:00 o'clock in the afternoon." The Court struck this down28 as not sanctioned by the law. It wrote: To allow the Muslim employees in the Judiciary to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer Day) during the entire calendar year would mean a diminution of the prescribed government working hours. For then, they would be rendering service twelve (12) hours less than that required by the civil service rules for each month. Further, this would encourage other religious denominations to request for similar treatment. The performance of religious practices, whether by the Muslim employees or those belonging to other religious denominations, should not prejudice the courts and the public. Indeed, the exercise of religious freedom does not exempt anyone from compliance with reasonable requirements of the law, including civil service laws. Accommodation, Not Establishment of Religion In order to give life to the constitutional right of freedom of religion, the State adopts a policy of accommodation. Accommodation is a recognition of the reality that some governmental measures may not be imposed on a certain portion of the population for the reason that these measures are contrary to their religious beliefs. As long as it can be shown that the exercise of the right does not impair the public welfare, the attempt of the State to regulate or prohibit such right would be an unconstitutional encroachment.29 In Estrada v. Escritor,30 the Court adopted a policy of benevolent neutrality:

No Compelling State Interest Religious freedom, however, is not absolute. It cannot have its way if there is a compelling state interest. To successfully invoke compelling state interest, it must be demonstrated that the masses in the QC Hall of Justice unduly disrupt the delivery of public services or affect the judges and employees in the performance of their official functions. In Estrada v. Escritor,27 the Court expounded on the test as follows: The "compelling state interest" test is proper where conduct is involved for the whole gamut of human conduct has different effects on the state's interests: some effects may be immediate and short-term while others delayed and far-reaching. A test that would protect the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state

With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances. Accommodations are government policies that take religion specifically into account not to promote the government's favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person's or institution's religion. As Justice Brennan explained, the "government [may] take religion into account ... to exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may flourish." [Emphases supplied]

In Victoriano v. Elizalde Rope Workers Union,31 the Court upheld the exemption of members of Iglesia ni Cristo from the coverage of a closed shop agreement between their employer and a union, because it would violate the teaching of their church not to affiliate with a labor organization. In Ebralinag v. Division Superintendent of Schools of Cebu,32 the petitioners, who were members of the Jehovah 's Witnesses, refused to salute the flag, sing the national anthem, and recite the patriotic pledge for it is their belief that those were acts of worship or religious devotion, which they could not conscientiously give to anyone or anything except God. The Court accommodated them and granted them an exemption from observing the flag ceremony out of respect for their religious beliefs. Further, several laws have been enacted to accommodate religion. The Revised Administrative Code of 1987 has declared Maundy Thursday, Good Friday, and Christmas Day as regular holidays. Republic Act (R.A.) No. 9177 proclaimed the FIRST Day of Shawwal, the tenth month of the Islamic Calendar, a national holiday for the observance of Eidul Fitr (the end of Ramadan). R.A. No. 9849 declared the tenth day of Zhu/ Hijja, the twelfth month of the Islamic Calendar, a national holiday for the observance of Eidul Adha. Presidential Decree (P.D.) No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, expressly allows a Filipino Muslim to have more than one (1) wife and exempts him from the crime of bigamy punishable under Revised Penal Code (RPC). The same Code allows Muslims to have divorce.33 As to Muslims in government offices, Section 3 of P.D. No. 291, as amended by P.D. No. 322, provides: Sec. 3. (a) During the fasting season on the month of Ramadan, all Muslim employees in the national government, government-owned or controlled corporations, provinces, cities, municipalities and other instrumentalities shall observe office hours from seventhirty in the morning (7:30 a.m.) to three-thirty in the afternoon (3:30 p.m.) without lunch break or coffee breaks, and that there shall be no diminution of salary or wages, provided, that the employee who is not fasting is not entitled to the benefit of this provision. Pursuant thereto, the CSC promulgated Resolution No. 81-1277, dated November 13, 1981, which reads in part: 2. During "Ramadan" the Fasting month (30 days) of the Muslims, the Civil Service official time of 8 o'clock to 12 o'clock and 1 o'clock to 5 o'clock is hereby modified to 7:30 AM. to 3:30 P.M. without noon break and the difference of 2 hours is not counted as undertime. Following the decree, in Re: Request of Muslim Employees in the Different Courts in Iligan City (Re: Office Hours),34the Court recognized that the observance of Ramadan as integral to the Islamic faith and allowed Muslim employees in the Judiciary to hold flexible office hours from 7:30 o'clock in the morning to 3:30 o'clock in the afternoon without any break during the period. This is a clear case of accommodation because Section 5, Rule XVII of the Omnibus Rules Implementing Book V of E.0. No. 292, enjoins all civil servants, of whatever religious denomination, to render public service of no less than eight (8) hours a day or forty (40) hours a week. Non-Establishment Clause On the opposite side of the spectrum is the constitutional mandate that "no law shall be made respecting an establishment of religion,"35 otherwise known as the nonestablishment clause. Indeed, there is a thin line between accommodation and establishment, which makes it even more imperative to understand each of these concepts by placing them in the Filipino society's perspective. The non-establishment clause reinforces the wall of separation between Church and State. It simply means that the State cannot set up a Church; nor pass laws which aid 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 in any religion; that the state cannot punish a person for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance; that no tax in any amount, large or small, can be levied to support any religious activity or institution whatever they may be called or whatever form they may adopt or teach or practice religion; that the state cannot openly or secretly participate in the affairs of any religious organization or group and vice versa.36 Its minimal sense is that the state cannot establish or sponsor an official religion.37

In the same breath that the establishment clause restricts what the government can do with religion, it also limits what religious sects can or cannot do. They can neither cause the government to adopt their particular doctrines as policy for everyone, nor can they cause the government to restrict other groups. To do so, in simple terms, would cause the State to adhere to a particular religion and, thus, establish a state religion.38 Father Bernas further elaborated on this matter, as follows: "In effect, what non-establishment calls for is government neutrality in religious matters. Such government neutrality may be summarized in four general propositions: (1) Government must not prefer one religion over another or religion over irreligion because such preference would violate voluntarism and breed dissension; (2) Government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension; (3) Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension; [and] (4) Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension."39 Establishment entails a positive action on the part of the State. Accommodation, on the other hand, is passive. In the former, the State becomes involved through the use of government resources with the primary intention of setting up a state religion. In the latter, the State, without being entangled, merely gives consideration to its citizens who want to freely exercise their religion. In a September 12, 2003 Memorandum for Chief Justice Hilario G. Davide, Jr., the Office of the Chief Attorney recommended to deny, on constitutional grounds, the request of Rev. Fr. Carlo M. Ilagan to hold a oneday vigil in honor of the Our Lady of Caysasay within the premises of the Court. Such controversy must be distinguished from the present issue in that with respect to the former, a Catholic priest was the one who requested for the vigil. Moreover, in that case, the vigil would take one (1) whole working day; whereas in this case, the masses are held at the initiative of Catholic employees and only during the thirty-minute lunch break. Guided by the foregoing, it is our considered view that the holding of Catholic masses at the basement of the QC Hall of Justice is not a case of establishment, but merely accommodation. First, there is no law, ordinance or circular issued by any duly constitutive authorities expressly mandating that judiciary employees attend the Catholic masses at the basement. Second, when judiciary employees attend the masses to profess their faith, it is at their own initiative as they are there on their own free will and volition, without any coercion from the judges or administrative officers. Third, no government funds are being spent because the lightings and airconditioning continue to be operational even if there are no religious rituals there. Fourth, the basement has neither been converted into a Roman Catholic chapel nor has it been permanently appropriated for the exclusive use of its faithful. Fifth, the allowance of the masses has not prejudiced other religions. No Appropriation Money or Benefit of any Church

of Property

for

Public the

Section 29 (2), Article VI of the 1987 Constitution provides, "No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium." The word "apply" means "to use or employ for a particular purpose."40 "Appropriate" means "to prescribe a particular use for particular moneys or to designate or destine a fund or property for a distinct use, or for the payment of a particular demand."41 Under the principle of noscitur a sociis, where a particular word or phrase is ambiguous in itself or is equally susceptible of various meanings, its correct construction may be made clear and specific by considering the company of words in which it is found or with which it is associated. This is because a word or phrase in a statute is always used in association with other words or phrases, and its meaning may, thus, be modified or restricted by the latter. The particular words, clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its

parts and in order to produce a harmonious whole. A statute must be so construed as to harmonize and give effect to all its provisions whenever possible.42 Thus, the words "pay" and "employ" should be understood to mean that what is prohibited is the use of public money or property for the sole purpose of benefiting or supporting any church. The prohibition contemplates a scenario where the appropriation is primarily intended for the furtherance of a particular church. It has also been held that the aforecited constitutional provision "does not inhibit the use of public property for religious purposes when the religious character of such use is merely incidental to a temporary use which is available indiscriminately to the public in general." Hence, a public street may be used for a religious procession even as it is available for a civic parade, in the same way that a public plaza is not barred to a religious rally if it may also be used for a political assemblage.43 In relation thereto, the phrase "directly or indirectly" refers to the manner of appropriation of public money or property, not as to whether a particular act involves a direct or a mere incidental benefit to any church. Otherwise, the framers of the Constitution would have placed it before "use, benefit or support" to describe the same. Even the exception to the same provision bolsters this interpretation. The exception contemplates a situation wherein public funds are paid to a priest, preacher, minister, or other religious teacher, or dignitary because they rendered service in the armed forces, or to any penal institution, or government orphanage or leprosarium. That a priest belongs to a particular church and the latter may have benefited from the money he received is of no moment, for the purpose of the payment of public funds is merely to compensate the priest for services rendered and for which other persons, who will perform the same services will also be compensated in the same manner. Ut magis valeat quam pereat. The Constitution is to be interpreted as a whole.44 As such, the foregoing interpretation finds support in the Establishment Clause, which is as clear as daylight in stating that what is proscribed is the passage of any law which tends to establish a religion, not merely to accommodate the free exercise thereof. The Constitution even grants tax exemption to properties actually, directly and exclusively devoted to religious purposes.45 Certainly, this benefits the religious sects for a portion of what could have been collected for the benefit of the public is surrendered in their favor. In Manosca v. CA,46 a parcel of land located in Taguig was determined by the National Historical Institute to be the birthsite of Felix Y. Manalo, the founder of Iglesia ni Cristo. The Republic then sought to expropriate the said property. The exercise of the power of eminent domain was questioned on the ground that it would only benefit members of Iglesia ni Cristo. The Court upheld the legality of the expropriation, viz.: The practical reality that greater benefit may be derived by members of the Iglesia ni Cristo than by most others could well be true but such a peculiar advantage still remains to be merely incidental and secondary in nature.47 [Emphasis supplied] Again, in Aglipay, the issuing and selling of postage stamps commemorative of the Thirty-third International Eucharistic Congress was assailed on the ground that it violated the constitutional prohibition against the appropriation of public money or property for the benefit of any church. In ruling that there was no such violation, the Court held: It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordination to mere incidental results not contemplated.48 [Emphasis supplied] Here, the basement of the QC Hall of Justice is not appropriated, applied or employed for the sole purpose of supporting the Roman Catholics. Further, it has not been converted into a Roman Catholic chapel for the exclusive use of its faithful contrary to the claim of Valenciana. Judge

Maceren reported that the basement is also being used as a public waiting area for most of the day and a meeting place for different employee organizations. The use of the area for holding masses is limited to lunch break period from twelve (12) o'clock to one (1) o'clock in the afternoon. Further, Judge Sagun, Jr. related that masses run for just a little over thirty (30) minutes. It is, therefore, clear that no undue religious bias is being committed when the subject basement is allowed to be temporarily used by the Catholics to celebrate mass, as the same area can be used by other groups of people and for other purposes.49 Thus, the basement of the QC Hall of Justice has remained to be a public property devoted for public use because the holding of Catholic masses therein is a mere incidental consequence of its primary purpose. Conclusion Directing the Executive Judges of the RTC and MeTC to regulate and closely monitor the holding of masses and other religious practices within the courts does not promote excessive collaboration between courts and various religions. On the contrary, this is necessary to ensure that there would be no excessive entanglement. To disallow the holding of religious rituals within halls of justice would set a dangerous precedent and commence a domino effect. Strict separation, rather than benevolent neutrality/accommodation, would be the norm. Thus, the establishment of Shari'a courts, the National Commission for Muslim Filipinos, and the exception of Muslims from the provisions of the RPC relative to the crime of bigamy would all be rendered nugatory because of strict separation. The exception of members of Iglesia ni Cristo from joining a union or the non-compulsion recognized in favor of members of the Jehovah's Witnesses from doing certain gestures during the flag ceremony, will all go down the drain simply because we insist on strict separation. That the holding of masses at the basement of the QC Hall of Justice may offend nonCatholics is no reason to proscribe it. Our Constitution ensures and mandates an unconditional tolerance, without regard to whether those who seek to profess their faith belong to the majority or to the minority. It is emphatic in saying that "the free exercise and enjoyment of religious profession and worship shall be without discrimination or preference." Otherwise, accommodation or tolerance would just be mere lip service. One cannot espouse that the constitutional freedom of religion ensures tolerance, but, in reality, refuses to practice what he preaches. One cannot ask for tolerance when he refuses to do the same for others. In fine, the Court denies the plea that the holding of Catholic masses at the basement of the QC Hall of Justice be prohibited because the said practice does not violate the constitutional principle of separation of Church and State and the constitutional prohibition against appropriation of public money or property for the benefit of a sect, church, denomination, or any other system of religion. WHEREFORE, the Court resolves to: 1. NOTE the letter-complaints of Mr. Tony Q. Valenciano, dated January 6, 2009, May 13, 2009, and March 23, 2010; 2. NOTE the 1st Indorsement, dated September 21, 2010, by the Office on Halls of Justice, containing photocopies and certified photocopies of previous actions made relative to the complaint; 3. NOTE the Letter-Comment, dated September 9, 2010, of Quezon City Regional Trial Court Executive Judge Fernando T. Sagun, Jr.; 4. NOTE the undated Letter-Comment of Quezon City Metropolitan Trial Court Executive Judge Caridad M. Walse-Lutero; 5. DENY the prayer of Tony Q. Valenciano to prohibit the holding of religious rituals in the QC Hall of Justice and in all halls of justice in the country; and 6. DIRECT the Executive Judges of Quezon City to REGULATE and CLOSELY MONITOR the holding of masses and other religious practices within the Quezon City Hall of Justice by ensuring, among others, that: (a) it does not disturb or interrupt court proceedings;

(b) it does not adversely affect and interrupt the delivery of public service; and (c) it does not unduly inconvenience the public. In no case shall a particular part of a public building be a permanent place for worship for the benefit of any and all religious groups. There shall also be no permanent display of religious icons in all halls of justice in the country. In case of religious rituals, religious icons and images may be displayed but their presentation is limited only during the celebration of such activities so as not to offend the sensibilities of members of other religious denominations or the non-religious public. After any religious affair, the icons and images shall be hidden or concealed from public view. The disposition in this administrative matter shall apply to all halls of justice in the country. Other churches, religious denominations or sects are entitled to the same rights, privileges, and practices in every hall of justice. In other buildings not owned or controlled by the Judiciary, the Executive Judges should coordinate and seek approval of the building owners/administrators accommodating their courts. SO ORDERED. JOSE Associate Justice

CATRAL

MENDOZA

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-14639 March 25, 1919 ZACARIAS VILLAVICENCIO, ET AL., petitioners, vs. JUSTO LUKBAN, ET AL., respondents. Alfonso Mendoza for petitioners. City Fiscal Diaz for respondents. MALCOLM, J.: The annals of juridical history fail to reveal a case quite as remarkable as the one which this application for habeas corpus submits for decision. While hardly to be expected to be met with in this modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of our minds the basic principles of popular government, and if we give expression to the paramount purpose for which the courts, as an independent power of such a government, were constituted. The primary question is — Shall the judiciary permit a government of the men instead of a government of laws to be set up in the Philippine Islands? Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable reading for other departments of the government, the facts are these: The Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated district for women of ill repute, which had been permitted for a number of years in the city of Manila, closed. Between October 16 and October 25, 1918, the women were kept confined to their houses in the district by the police. Presumably, during this period, the city authorities quietly perfected arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with some government office for the use of the coastguard cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and placed them aboard the steamers that awaited their arrival. The women were given no opportunity to collect their belongings, and apparently were under the impression that they were being taken to a police station for an investigation. They had no knowledge that they were destined for a life in Mindanao. They had not been asked if they wished to depart from that region and had neither directly nor indirectly given their consent to the deportation. The involuntary guests were received on board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of October 25. The vessels reached their destination at Davao on October 29. The women were landed and receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo and Rafael Castillo. The governor and the hacendero Yñigo, who appear as parties in the case, had no previous notification that the women were prostitutes who had been expelled from the city of Manila. The further happenings to these women and the serious charges growing out of alleged ill-treatment are of public interest, but are not essential to the disposition of this case. Suffice it to say, generally, that some of the women married, others assumed more or less clandestine relations with men, others went to work in different capacities, others assumed a life unknown and disappeared, and a goodly portion found means to return to Manila. To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the attorney for the relatives and friends of a considerable number of the deportees presented an application for habeas corpus to a member of the Supreme Court. Subsequently, the application, through stipulation of the parties, was made to include all of the women who were sent away from Manila to Davao and, as the same questions concerned them all, the application will be considered as including them. The application set forth the salient facts, which need not be repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation, and prayed that the writ should not be granted because the petitioners were not proper parties, because the action should have been begun in the Court of First Instance for Davao, Department of Mindanao and Sulu, because the respondents did not have any of the women under their custody or control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila. According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on the haciendas of Yñigo and Governor Sales. In open court, the fiscal admitted, in answer to question of a member

of the court, that these women had been sent out of Manila without their consent. The court awarded the writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yñigo, an hacenderoof Davao, to bring before the court the persons therein named, alleged to be deprived of their liberty, on December 2, 1918. Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons in whose behalf the writ was issued were produced in court by the respondents. It has been shown that three of those who had been able to come back to Manila through their own efforts, were notified by the police and the secret service to appear before the court. The fiscal appeared, repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of Davao and the answer thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales answered alleging that it was not possible to fulfill the order of the Supreme Court because the women had never been under his control, because they were at liberty in the Province of Davao, and because they had married or signed contracts as laborers. Respondent Yñigo answered alleging that he did not have any of the women under his control and that therefore it was impossible for him to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated a second order, which related that the respondents had not complied with the original order to the satisfaction of the court nor explained their failure to do so, and therefore directed that those of the women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and Yñigo on January 13, 1919, unless the women should, in written statements voluntarily made before the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the respondents should demonstrate some other legal motives that made compliance impossible. It was further stated that the question of whether the respondents were in contempt of court would later be decided and the reasons for the order announced in the final decision. Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13, 1919, the respondents technically presented before the Court the women who had returned to the city through their own efforts and eight others who had been brought to Manila by the respondents. Attorneys for the respondents, by their returns, once again recounted the facts and further endeavored to account for all of the persons involved in the habeas corpus. In substance, it was stated that the respondents, through their representatives and agents, had succeeded in bringing from Davao with their consent eight women; that eighty-one women were found in Davao who, on notice that if they desired they could return to Manila, transportation fee, renounced the right through sworn statements; that fifty-nine had already returned to Manila by other means, and that despite all efforts to find them twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila, Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the record. In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final decision. We will now proceed to do so. One fact, and one fact only, need be recalled — these one hundred and seventy women were isolated from society, and then at night, without their consent and without any opportunity to consult with friends or to defend their rights, were forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of the police and the constabulary was deemed necessary and that these officers of the law chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted by the respondents. With this situation, a court would next expect to resolve the question — By authority of what law did the Mayor and the Chief of Police presume to act in deporting by

duress these persons from Manila to another distant locality within the Philippine Islands? We turn to the statutes and we find — Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of Manila provide for the conviction and punishment by a court of justice of any person who is a common prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may have been convicted of vagrancy, to the homeland. New York and other States have statutes providing for the commitment to the House of Refuge of women convicted of being common prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to some law or order. But one can search in vain for any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine Islands — and these women despite their being in a sense lepers of society are nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are other citizens — to change their domicile from Manila to another locality. On the contrary, Philippine penal law specifically punishes any public officer who, not being expressly authorized by law or regulation, compels any person to change his residence. In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands, even the President of the United States, who has often been said to exercise more power than any king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore, has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and the chief of police could, at their mere behest or even for the most praiseworthy of motives, render the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of the Philippines have the same privilege. If these officials can take to themselves such power, then any other official can do the same. And if any official can exercise the power, then all persons would have just as much right to do so. And if a prostitute could be sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club over the head of any citizen. Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in another case, "that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that the primary question was whether the courts should permit a government of men or a government of laws to be established in the Philippine Islands. What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus. The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It may still rest with the parties in interest to pursue such an action, but it was never intended effectively and promptly to meet any such situation as that now before us. As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:

Any public officer not thereunto authorized by law or by regulations of a general character in force in the Philippines who shall banish any person to a place more than two hundred kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than three hundred and twenty-five and not more than three thousand two hundred and fifty pesetas. Any public officer not thereunto expressly authorized by law or by regulation of a general character in force in the Philippines who shall compel any person to change his domicile or residence shall suffer the penalty of destierro and a fine of not less than six hundred and twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.) We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public officer has violated this provision of law, these prosecutors will institute and press a criminal prosecution just as vigorously as they have defended the same official in this action. Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which will later be referred to — "It would be a monstrous anomaly in the law if to an application by one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement was a crime, and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty. Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce they could not bring the women from Davao. The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court. The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or should have been made returnable before that court. It is a general rule of good practice that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is dependent on the particular circumstances. In this instance it was not shown that the Court of First Instance of Davao was in session, or that the women had any means by which to advance their plea before that court. On the other hand, it was shown that the petitioners with their attorneys, and the two original respondents with their attorney, were in Manila; it was shown that the case involved parties situated in different parts of the Islands; it was shown that the women might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to accomplish its purpose, it must be taken cognizance of and decided immediately by the appellate court. The failure of the superior court to consider the application and then to grant the writ would have amounted to a denial of the benefits of the writ. The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first blush, this is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of the first principles of the writ of habeas corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived his right. Consider for a moment what an agreement with such a defense would mean. The chief executive of any municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries of the municipality, and then, when called upon to defend his official action, could calmly fold his hands and claim that the person was under no restraint and that he, the official, had no jurisdiction over this other municipality. We believe the true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded. It must be that some such question has heretofore been presented to the courts for decision. Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain decisions of respectable courts are however very persuasive in nature. A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ of habeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into the State a minor child under guardianship in the State, who has been and continues to be detained in another State. The membership of the Michigan Supreme Court at this time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court was equally divided. Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his conception of the English decisions, and since, as will hereafter appear, the English courts have taken a contrary view, only the following eloquent passages from the opinion of Justice Cooley are quoted: I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition which was laid before us. . . . It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was such a fellow that he will have no sovereign," and after the extension of its benefits and securities by the petition of right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that great clause for the protection of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed here. If it is so, it is important that it be determined without delay, that the legislature may apply the proper remedy, as I can not doubt they would, on the subject being brought to their notice. . . . The second proposition — that the statutory provisions are confined to the case of imprisonment within the state — seems to me to be based upon a misconception as to the source of our jurisdiction. It was never the case in England that the court of king's bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not passed to give the right, but to compel the observance of rights which existed. . . .

The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to and served upon, not the person confined, but his jailor. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if any other means are resorted to, they are only auxiliary to those which are usual. The place of confinement is, therefore, not important to the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the limits of the state, except as greater distance may affect it. The important question is, where the power of control exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.) The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.) The English courts have given careful consideration to the subject. Thus, a child had been taken out of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of the mother and her husband directing the defendant to produce the child. The judge at chambers gave defendant until a certain date to produce the child, but he did not do so. His return stated that the child before the issuance of the writ had been handed over by him to another; that it was no longer in his custody or control, and that it was impossible for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said: A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice immediately after the receipt of the writ, together with the cause of her being taken and detained. That is a command to bring the child before the judge and must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of the child. If it could be shown that by reason of his having lawfully parted with the possession of the child before the issuing of the writ, the defendant had no longer power to produce the child, that might be an answer; but in the absence of any lawful reason he is bound to produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ without lawful excuse. Many efforts have been made in argument to shift the question of contempt to some anterior period for the purpose of showing that what was done at some time prior to the writ cannot be a contempt. But the question is not as to what was done before the issue of the writ. The question is whether there has been a contempt in disobeying the writ it was issued by not producing the child in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.) A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to have before the circuit court of the District of Columbia three colored persons, with the cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the District of Columbia before the service of the writ of habeas corpus, and that they were then beyond his control and out of his custody. The evidence tended to show that Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus. The court held the return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being present in court, and refusing to produce them, ordered that he be committed to the custody of the marshall until he should produce the negroes, or be otherwise discharged in due course of law. The court afterwards ordered that Davis be released upon the production of two of the negroes, for one of the negroes had run away and been lodged in jail in Maryland. Davis produced the two negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.) We find, therefore, both on reason and authority, that no one of the defense offered by the respondents constituted a legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of the Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt should be punished or be taken as purged. The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yñigo to present the persons named in the writ before the court on December 2, 1918. The order was dated November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial governor of Davao. According to the response of the attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to Manila, but who should not be permitted to do so because of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question being brought before the court on the day named. For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have produced the bodies of the persons according to the command of the writ; or (2) they could have shown by affidavit that on account of sickness or infirmity those persons could not safely be brought before the court; or (3) they could have presented affidavits to show that the parties in question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf the writ was granted; they did not show impossibility of performance; and they did not present writings that waived the right to be present by those interested. Instead a few stereotyped affidavits purporting to show that the women were contended with their life in Davao, some of which have since been repudiated by the signers, were appended to the return. That through ordinary diligence a considerable number of the women, at least sixty, could have been brought back to Manila is demonstrated to be found in the municipality of Davao, and that about this number either returned at their own expense or were produced at the second hearing by the respondents. The court, at the time the return to its first order was made, would have been warranted summarily in finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for the non-production of the persons were far from sufficient. The, authorities cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that, having brought about that state of things by his own illegal act, he must take the consequences; and we said that he was bound to use every effort to get the child back; that he must do much more than write letters for the purpose; that he must advertise in America, and even if necessary himself go after the child, and do everything that mortal man could do in the matter; and that the court would only accept clear proof of an absolute impossibility by way of excuse." In other words, the return did not show that every possible effort to produce the women was made by the respondents. That the court forebore at this time to take drastic action was because it did not wish to see presented to the public gaze the spectacle of a clash between executive officials and the judiciary, and because it desired to give the respondents another chance to demonstrate their good faith and to mitigate their wrong. In response to the second order of the court, the respondents appear to have become more zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the municipal police joined in rounding up the women, and a steamer with free transportation to Manila was provided. While charges and counter-charges in such a bitterly contested case are to be expected, and while a critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with it. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an executive investigation. If any particular individual is still restrained of her liberty, it can be made the object of separate habeas corpus proceedings. Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in this connection remains to be done. The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yñigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail. Nevertheless when one is commanded to produce a certain person and does not do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must order him either imprisoned or fined. An officer's failure to produce the body of a person in obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.) With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say that any of the respondents, with the possible exception of the first named, has flatly disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance. The hacendero Yñigo appears to have been drawn into the case through a misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to fulfill his duty as the legal representative of the city government. Finding him innocent of any disrespect to the court, his counter-motion to strike from the record the memorandum of attorney for the petitioners, which brings him into this undesirable position, must be granted. When all is said and done, as far as this record discloses, the official who was primarily responsible for the unlawful deportation, who ordered the police to accomplish the same, who made arrangements for the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and who later, as the head of the city government, had it within his power to facilitate the return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was commendable. His methods were unlawful. His regard for the writ of habeas corpus issued by the court was only tardily and reluctantly acknowledged. It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined to this stern view. It would also be possible to find that since respondent Lukban did comply substantially with the second order of the court, he has purged his contempt of the first order. Some members of the court are inclined to this merciful view. Between the two extremes appears to lie the correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to belittle and embarrass the administration of justice to such an extent that his later activity may be considered only as extenuating his conduct. A nominal fine will at once command such respect without being unduly oppressive — such an amount is P100. In resume — as before stated, no further action on the writ of habeas corpus is necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in contempt of court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the record the Replica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against respondents. So ordered. In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal encroachment. Arellano, C.J., Avanceña Johnson, and Street, JJ., concur in the result.

and

Moir,

JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 94284 April 8, 1991 RICARDO C. SILVERIO, petitioner, vs. THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional Trial Court of Cebu City, Branch IX, and PEOPLE OF THE PHILIPPINES, respondents. Quisumbing, Torres & Evangelista for petitioner. MELENCIO-HERRERA, J.: This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the Decision of respondent Court of Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio vs. Hon. Benigno C. Gaviola, etc., et al.," dated 31 January 1990, as well as the Resolution of 29 June 1990 denying reconsideration, be set aside. On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised Securities Act in Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due time, he posted bail for his provisional liberty. On 26 January 1988, or more than two (2) years after the filing of the Information, respondent People of the Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a hold-departure Order against accused-petitioner on the ground that he had gone abroad several times without the necessary Court approval resulting in postponements of the arraignment and scheduled hearings. Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing the Department of Foreign Affairs to cancel Petitioner's passport or to deny his application therefor, and the Commission on Immigration to prevent Petitioner from leaving the country. This order was based primarily on the Trial Court's finding that since the filing of the Information on 14 October 1985, "the accused has not yet been arraigned because he has never appeared in Court on the dates scheduled for his arraignment and there is evidence to show that accused Ricardo C. Silverio, Sr. has left the country and has gone abroad without the knowledge and permission of this Court" (Rollo, p. 45). Petitioner's Motion for Reconsideration was denied on 28 July 1988. Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31 January 1990. Hence, this Petition for Review filed on 30 July 1990. After the respective pleadings required by the Court were filed, we resolved to give due course and to decide the case. Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court committed grave abuse of discretion amounting to lack of jurisdiction in issuing its Orders, dated 4 April and 28 July 1988, (1) on the basis of facts allegedly patently erroneous, claiming that the scheduled arraignments could not be held because there was a pending Motion to Quash the Information; and (2) finding that the right to travel can be impaired upon lawful order of the Court, even on grounds other than the "interest of national security, public safety or public health." We perceive no reversible error. 1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is apparent that it was filed long after the filing of the Information in 1985 and only after several arraignments had already been scheduled and cancelled due to Petitioner's non-appearance. In fact, said Motion to Quash was set for hearing only on 19 February 1988. Convincingly shown by the Trial Court and conformed to by respondent Appellate Court is the concurrence of the following circumstances: 1. The records will show that the information was filed on October 14, 1985. Until this date (28 July 1988), the case had yet to be arraigned. Several scheduled arraignments were cancelled and reset, mostly due to the failure of accused Silverio to appear. The reason for accused Silverio's failure to appear had invariably been because he is abroad in the United States of America; 2. Since the information was filed, until this date, accused Silverio had never appeared in person before the Court;

3. The bond posted by accused Silverio had been cancelled twice and warrants of arrest had been issued against him all for the same reason –– failure to appear at scheduled arraignments. In all candidness, the Court makes the observation that it has given accused Silverio more than enough consideration. The limit had long been reached (Order, 28 July 1988, Crim. Case No. CBU-6304, RTC, Cebu, p. 5; Rollo, p. 73). Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not based on erroneous facts, as Petitioner would want this Court to believe. To all appearances, the pendency of a Motion to Quash came about only after several settings for arraignment had been scheduled and cancelled by reason of Petitioner's non-appearance. 2) Petitioner's further submission is that respondent Appellate Court "glaringly erred" in finding that the right to travel can be impaired upon lawful order of the Court, even on grounds other than the "interest of national security, public safety or public health." To start with, and this has not been controverted by Petitioner, the bail bond he had posted had been cancelled and Warrants of Arrest had been issued against him by reason, in both instances, of his failure to appear at scheduled arraignments. Warrants of Arrest having been issued against him for violation of the conditions of his bail bond, he should be taken into custody. "Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court when so required by the Court or the Rules (1985 Rules on Criminal Procedure, as amended, Rule 114, Secs. 1 and 2). The foregoing condition imposed upon an accused to make himself available at all times whenever the Court requires his presence operates as a valid restriction of his right to travel (Manotoc, Jr. vs. Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149). A person facing criminal charges may be restrained by the Court from leaving the country or, if abroad, compelled to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is also that "An accused released on bail may be rearrested without the necessity of a warrant if he attempts to depart from the Philippines without prior permission of the Court where the case is pending (ibid., Sec. 20 [2nd par. ]). Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of the Courts to curtail the liberty of abode within the limits prescribed by law, it restricts the allowable impairment of the right to travel only on grounds of interest of national security, public safety or public health, as compared to the provisions on freedom of movement in the 1935 and 1973 Constitutions. Under the 1935 Constitution, the liberty of abode and of travel were treated under one provision.1âwphi1 Article III, Section 1(4) thereof reads: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired. The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel, thus: The liberty of abode and of travel shall not be impaired except upon lawful order of the court or when necessary in the interest of national security, public safety, or public health (Article IV, Section 5). The 1987 Constitution has split the two freedoms into two distinct sentences and treats them differently, to wit: Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only on the grounds of "national security, public safety, or public health."

The submission is not well taken. Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party (See Salonga vs. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121). Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxillary writs, process and other means necessary to carry it into effect may be employed by such Court or officer (Rule 135, Section 6, Rules of Court). Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al. (supra), to the effect that the condition imposed upon an accused admitted to bail to make himself available at all times whenever the Court requires his presence operates as a valid restriction on the right to travel no longer holds under the 1987 Constitution, is far from tenable. The nature and function of a bail bond has remained unchanged whether under the 1935, the 1973, or the 1987 Constitution. Besides, the Manotoc ruling on that point was but a re-affirmation of that laid down long before in People v. Uy Tuising, 61 Phil. 404 (1935). Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof by failing to appear before the Court when required. Warrants for his arrest have been issued. Those orders and processes would be rendered nugatory if an accused were to be allowed to leave or to remain, at his pleasure, outside the territorial confines of the country. Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to Court Orders and processes. WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner, Ricardo C. Silverio. SO ORDERED. Paras, Padilla, Sarmiento and Regalado, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 88211 October 27, 1989 FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners, vs. HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff, respectively, respondents. RESOLUTION EN BANC: In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7), dismissed the petition, after finding that the President did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family at the present time and under present circumstances pose a threat to national interest and welfare and in prohibiting their return to the Philippines. On September 28, 1989, former President Marcos died in Honolulu, Hawaii. In a statement, President Aquino said: In the interest of the safety of those who will take the death of Mr. Marcos in widely and passionately conflicting ways, and for the tranquility of the state and order of society, the remains of Ferdinand E. Marcos will not be allowed to be brought to our country until such time as the government, be it under this administration or the succeeding one, shall otherwise decide. [Motion for Reconsideration, p. 1; Rollo, p, 443.] On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following major arguments: 1. to bar former President Marcos and his family from returning to the Philippines is to deny them not only the inherent right of citizens to return to their country of birth but also the protection of the Constitution and all of the rights guaranteed to Filipinos under the Constitution; 2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it arbitrarily; and 3. there is no basis for barring the return of the family of former President Marcos. Thus, petitioners prayed that the Court reconsider its decision, order respondents to issue the necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio Araneta to return to the Philippines, and enjoin respondents from implementing President Aquino's decision to bar the return of the remains of Mr. Marcos, and the other petitioners, to the Philippines. Commenting on the motion for reconsideration, the Solicitor General argued that the motion for reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts that "the 'formal' rights being invoked by the Marcoses under the label 'right to return', including the label 'return of Marcos' remains, is in reality or substance a 'right' to destabilize the country, a 'right' to hide the Marcoses' incessant shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he prays that the Motion for Reconsideration be denied for lack of merit. We deny the motion for reconsideration. 1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants, petitioner herein, to show that there are compelling reasons to reconsider the decision of the Court.

2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is of the view that no compelling reasons have been established by petitioners to warrant a reconsideration of the Court's decision. The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the factual scenario under which the Court's decision was rendered. The threats to the government, to which the return of the Marcoses has been viewed to provide a catalytic effect, have not been shown to have ceased. On the contrary, instead of erasing fears as to the destabilization that will be caused by the return of the Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return when she called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines, and declared that the matter "should be brought to all the courts of the world." [Comment, p. 1; Philippine Star, October 4, 1989.] 3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive power is vested, has unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific power of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power. That the President has powers other than those expressly stated in the Constitution is nothing new. This is recognized under the U.S. Constitution from which we have patterned the distribution of governmental powers among three (3) separate branches. Article II, [section] 1, provides that "The Executive Power shall be vested in a President of the United States of America." In Alexander Hamilton's widely accepted view, this statement cannot be read as mere shorthand for the specific executive authorizations that follow it in [sections] 2 and 3. Hamilton stressed the difference between the sweeping language of article II, section 1, and the conditional language of article I, [section] 1: "All legislative Powers herein granted shall be vested in a Congress of the United States . . ." Hamilton submitted that "[t]he [article III enumeration [in sections 2 and 31 ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of execution power; leaving the rest to flow from the general grant of that power, interpreted in confomity with other parts of the Constitution... In Myers v. United States, the Supreme Court — accepted Hamilton's proposition, concluding that the federal executive, unlike the Congress, could exercise power from sources not enumerated, so long as not forbidden by the constitutional text: the executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed. . ." The language of Chief Justice Taft in Myers makes clear that the constitutional concept of inherent power is not a synonym for power without limit; rather, the concept suggests only that not all powers granted in the Constitution are themselves exhausted by internal enumeration, so that, within a sphere properly regarded as one of "executive' power, authority is implied unless there or elsewhere expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).] And neither can we subscribe to the view that a recognition of the President's implied or residual powers is tantamount to setting the stage for another dictatorship. Despite petitioners' strained analogy, the residual powers of the President under the Constitution should not be confused with the power of the President under the 1973 Constitution to legislate pursuant to Amendment No. 6 which provides: Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence

thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instruction, which shall form part of the law of the land, There is no similarity between the residual powers of the President under the 1987 Constitution and the power of the President under the 1973 Constitution pursuant to Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power. It is not implied. Then, Amendment No. 6 refers to a grant to the President of the specific power of legislation. 4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of office, is to protect and promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in compliance with this bounden duty. In the absence of a clear showing that she had acted with arbitrariness or with grave abuse of discretion in arriving at this decision, the Court will not enjoin the implementation of this decision. ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 81958 June 30, 1988 PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner, vs. HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D. ACHACOSO, as Administrator of the Philippine Overseas Employment Administration, respondents. Gutierrez & Alo Law Offices for petitioner. SARMIENTO, J.: The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm "engaged principally in the recruitment of Filipino workers, male and female, for overseas placement," 1 challenges the Constitutional validity of Department Order No. 1, Series of 1988, of the Department of Labor and Employment, in the character of "GUIDELINES GOVERNING THE TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS," in this petition for certiorari and prohibition. Specifically, the measure is assailed for "discrimination against males or females;" 2 that it "does not apply to all Filipino workers but only to domestic helpers and females with similar skills;" 3 and that it is violative of the right to travel. It is held likewise to be an invalid exercise of the lawmaking power, police power being legislative, and not executive, in character. In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution, providing for worker participation "in policy and decision-making processes affecting their rights and benefits as may be provided by law." 4 Department Order No. 1, it is contended, was passed in the absence of prior consultations. It is claimed, finally, to be in violation of the Charter's non-impairment clause, in addition to the "great and irreparable injury" that PASEI members face should the Order be further enforced. On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and Administrator of the Philippine Overseas Employment Administration, filed a Comment informing the Court that on March 8, 1988, the respondent Labor Secretary lifted the deployment ban in the states of Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and Switzerland. * In submitting the validity of the challenged "guidelines," the Solicitor General invokes the police power of the Philippine State. It is admitted that Department Order No. 1 is in the nature of a police power measure. The only question is whether or not it is valid under the Constitution. The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." 5 As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace. "Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits." 6 It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter. Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital functions of governance. Marshall, to whom the expression has been credited, 7 refers to it succinctly as the plenary power of the State "to govern its citizens." 8 "The police power of the State ... is a power coextensive with self- protection, and it is not inaptly termed the "law of overwhelming necessity." It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society." 9 It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the

enactment of such salutary measures calculated to ensure communal peace, safety, good order, and welfare." 10 Significantly, the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and liberties "Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's will." 11 It is subject to the far more overriding demands and requirements of the greater number. Notwithstanding its extensive sweep, police power is not without its own limitations. For all its awesome consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in that event, it defeats the purpose for which it is exercised, that is, to advance the public good. Thus, when the power is used to further private interests at the expense of the citizenry, there is a clear misuse of the power. 12 In the light of the foregoing, the petition must be dismissed. As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of clear and convincing evidence to the contrary, the presumption logically stands. The petitioner has shown no satisfactory reason why the contested measure should be nullified. There is no question that Department Order No. 1 applies only to "female contract workers," 14 but it does not thereby make an undue discrimination between the sexes. It is well-settled that "equality before the law" under the Constitution 15does not import a perfect Identity of rights among all men and women. It admits of classifications, provided that (1) such classifications rest on substantial distinctions; (2) they are germane to the purposes of the law; (3) they are not confined to existing conditions; and (4) they apply equally to all members of the same class. 16 The Court is satisfied that the classification made-the preference for female workers — rests on substantial distinctions. As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen our female labor force abroad, especially domestic servants, amid exploitative working conditions marked by, in not a few cases, physical and personal abuse. The sordid tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by testimonies of returning workers, are compelling motives for urgent Government action. As precisely the caretaker of Constitutional rights, the Court is called upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the Government's efforts. The same, however, cannot be said of our male workers. In the first place, there is no evidence that, except perhaps for isolated instances, our men abroad have been afflicted with an Identical predicament. The petitioner has proffered no argument that the Government should act similarly with respect to male workers. The Court, of course, is not impressing some male chauvinistic notion that men are superior to women. What the Court is saying is that it was largely a matter of evidence (that women domestic workers are being ill-treated abroad in massive instances) and not upon some fanciful or arbitrary yardstick that the Government acted in this case. It is evidence capable indeed of unquestionable demonstration and evidence this Court accepts. The Court cannot, however, say the same thing as far as men are concerned. There is simply no evidence to justify such an inference. Suffice it to state, then, that insofar as classifications are concerned, this Court is content that distinctions are borne by the evidence. Discrimination in this case is justified. As we have furthermore indicated, executive determinations are generally final on the Court. Under a republican regime, it is the executive branch that enforces policy. For their part, the courts decide, in the proper cases, whether that policy, or the manner by which it is implemented, agrees with the Constitution or the laws, but it is not for them to question its wisdom. As a co-equal body, the judiciary has great respect for determinations of the Chief Executive or his subalterns, especially when the legislature itself has specifically given them enough room on how the law should be effectively enforced. In the case at bar, there is no gainsaying the fact, and the Court will deal with this at greater length shortly, that Department Order No. 1 implements the rulemaking powers granted by the Labor Code. But what should be noted is the fact that in spite of such a fiction of finality, the Court is on its own persuaded that prevailing conditions indeed call for a deployment ban. There is likewise no doubt that such a classification is germane to the purpose behind the measure. Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance the protection for Filipino female overseas workers" 17 this Court has no quarrel that in the midst of the terrible mistreatment Filipina workers have suffered abroad, a ban on deployment will be for their own good and welfare.

The Order does not narrowly apply to existing conditions. Rather, it is intended to apply indefinitely so long as those conditions exist. This is clear from the Order itself ("Pending review of the administrative and legal measures, in the Philippines and in the host countries . . ."18), meaning to say that should the authorities arrive at a means impressed with a greater degree of permanency, the ban shall be lifted. As a stop-gap measure, it is possessed of a necessary malleability, depending on the circumstances of each case. Accordingly, it provides:

of similar skills shall be allowed to process with the POEA and leave for worksite only if they are returning to the same employer to finish an existing or partially served employment contract. Those workers returning to worksite to serve a new employer shall be covered by the suspension and the provision of these guidelines. xxx xxx xxx

9. LIFTING OF SUSPENSION. — The Secretary of Labor and Employment (DOLE) may, upon recommendation of the Philippine Overseas Employment Administration (POEA), lift the suspension in countries where there are:

9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment (DOLE) may, upon recommendation of the Philippine Overseas Employment Administration (POEA), lift the suspension in countries where there are:

1. Bilateral agreements or understanding with the Philippines, and/or,

1. Bilateral agreements or understanding with the Philippines, and/or,

2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and protection of Filipino workers. 19 The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas workers. That it does not apply to "all Filipina workers" 20 is not an argument for unconstitutionality. Had the ban been given universal applicability, then it would have been unreasonable and arbitrary. For obvious reasons, not all of them are similarly circumstanced. What the Constitution prohibits is the singling out of a select person or group of persons within an existing class, to the prejudice of such a person or group or resulting in an unfair advantage to another person or group of persons. To apply the ban, say exclusively to workers deployed by A, but not to those recruited by B, would obviously clash with the equal protection clause of the Charter. It would be a classic case of what Chase refers to as a law that "takes property from A and gives it to B." 21 It would be an unlawful invasion of property rights and freedom of contract and needless to state, an invalid act. 22 (Fernando says: "Where the classification is based on such distinctions that make a real difference as infancy, sex, and stage of civilization of minority groups, the better rule, it would seem, is to recognize its validity only if the young, the women, and the cultural minorities are singled out for favorable treatment. There would be an element of unreasonableness if on the contrary their status that calls for the law ministering to their needs is made the basis of discriminatory legislation against them. If such be the case, it would be difficult to refute the assertion of denial of equal protection." 23 In the case at bar, the assailed Order clearly accords protection to certain women workers, and not the contrary.) It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas deployment. From scattered provisions of the Order, it is evident that such a total ban has hot been contemplated. We quote: 5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and workers of similar skills defined herein to the following [sic] are authorized under these guidelines and are exempted from the suspension. 5.1 Hirings by immediate members of the family of Heads of State and Government; 5.2 Hirings by Minister, Deputy Minister and the other senior government officials; and 5.3 Hirings by senior officials of the diplomatic corps and duly accredited international organizations. 5.4 Hirings by employers in countries with whom the Philippines have [sic] bilateral labor agreements or understanding. xxx xxx xxx 7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR SKILLS--Vacationing domestic helpers and/or workers

2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and protection of Filipino workers. 24 xxx xxx xxx The consequence the deployment ban has on the right to travel does not impair the right. The right to travel is subject, among other things, to the requirements of "public safety," "as may be provided by law." 25 Department Order No. 1 is a valid implementation of the Labor Code, in particular, its basic policy to "afford protection to labor," 26 pursuant to the respondent Department of Labor's rule-making authority vested in it by the Labor Code. 27 The petitioner assumes that it is unreasonable simply because of its impact on the right to travel, but as we have stated, the right itself is not absolute. The disputed Order is a valid qualification thereto. Neither is there merit in the contention that Department Order No. 1 constitutes an invalid exercise of legislative power. It is true that police power is the domain of the legislature, but it does not mean that such an authority may not be lawfully delegated. As we have mentioned, the Labor Code itself vests the Department of Labor and Employment with rulemaking powers in the enforcement whereof. 28 The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and decision-making processes affecting their rights and benefits" 29 is not welltaken. The right granted by this provision, again, must submit to the demands and necessities of the State's power of regulation. The Constitution declares that: Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. 30 "Protection to labor" does not signify the promotion of employment alone. What concerns the Constitution more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home. Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home. In this case, the Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of such protection, and as part of its duty, it has precisely ordered an indefinite ban on deployment. The Court finds furthermore that the Government has not indiscriminately made use of its authority. It is not contested that it has in fact removed the prohibition with respect to certain countries as manifested by the Solicitor General. The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier purposes targetted by the Government. 31 Freedom of contract and enterprise, like all other freedoms, is not free from restrictions, more so in this

jurisdiction, where laissez faire has never been fully accepted as a controlling economic way of life. This Court understands the grave implications the questioned Order has on the business of recruitment. The concern of the Government, however, is not necessarily to maintain profits of business firms. In the ordinary sequence of events, it is profits that suffer as a result of Government regulation. The interest of the State is to provide a decent living to its citizens. The Government has convinced the Court in this case that this is its intent. We do not find the impugned Order to be tainted with a grave abuse of discretion to warrant the extraordinary relief prayed for. WHEREFORE, the petition is DISMISSED. No costs. SO ORDERED. Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Cortes and Griño-Aquino, JJ., concur. Gutierrez, Jr. and Medialdea, JJ., are on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-27833 April 18, 1969 IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO GONZALES and FELICISIMO R. CABIGAO, petitioners, vs. COMMISSION ON ELECTIONS, respondent. F. R. Cabigao in his own behalf as petitioner. B. F. Advincula for petitioner Arsenio Gonzales. Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo Tañada as amicus curiae. FERNANDO, J.: A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the undesirable practice of prolonged political campaign bringing in their wake serious evils not the least of which is the ever increasing cost of seeking public office, is challenged on constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom of assembly and freedom of association are invoked to nullify the act. Thus the question confronting this Court is one of transcendental significance. It is faced with the reconciliation of two values esteemed highly and cherished dearly in a constitutional democracy. One is the freedom of belief and of expression availed of by an individual whether by himself alone or in association with others of similar persuasion, a goal that occupies a place and to none in the legal hierarchy. The other is the safeguarding of the equally vital right of suffrage by a prohibition of the early nomination of candidates and the limitation of the period of election campaign or partisan political activity, with the hope that the time-consuming efforts, entailing huge expenditures of funds and involving the risk of bitter rivalries that may end in violence, to paraphrase the explanatory note of the challenged legislation, could be devoted to more fruitful endeavors. The task is not easy, but it is unavoidable. That is of the very essence of judicial duty. To paraphrase a landmark opinion, 1 when we act in these matters we do so not on the assumption that to us is granted the requisite knowledge to set matters right, but by virtue of the responsibility we cannot escape under the Constitution, one that history authenticates, to pass upon every assertion of an alleged infringement of liberty, when our competence is appropriately invoked. This then is the crucial question: Is there an infringement of liberty? Petitioners so alleged in his action, which they entitled Declaratory Relief with Preliminary Injunction, filed on July 22, 1967, a proceeding that should have been started in the of Court of First Instance but treated by this Court as one of prohibition in view of the seriousness and the urgency of the constitutional issue raised. Petitioners challenged the validity of two new sections now included in the Revised Election Code, under Republic Act No. 4880, which was approved and took effect on June 17, 1967, prohibiting the too early nomination of candidates 2 and limiting the period of election campaign or partisan political activity. 3 The terms "candidate" and "election campaign" or "partisan political activity" are likewise defined. The former according to Act No. 4880 "refers to any person aspiring for or seeking an elective public office regarded of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate." "Election campaign" or "partisan political activity" refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office." Then the acts were specified. There is a proviso that simple expression of opinion and thoughts concerning the election shall not be considered as part of an election campaign. There is the further proviso that nothing stated in the Act "shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports." 4 Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent councilor in the 4th District of Manila and the Nacionalista Party official candidate for ViceMayor of Manila to which he was subsequently elected on November 11, 1967; petitioner Gonzales, on the other hand, is a private individual, a registered voter in the City of Manila and a political leader of his co-petitioner. It is their claim that "the enforcement of said Republic Act No. 4880 in question [would] prejudice [their] basic rights..., such as their freedom of speech, their freedom of assembly and their right to

form associations or societies for purpose not contrary to law, guaranteed under the Philippine Constitution," and that therefore said act is unconstitutional. After invoking anew the fundamental rights to free speech, free press, freedom of association and freedom of assembly with a citation of two American Supreme Court decisions, 5 they asserted that "there is nothing in the spirit or intention of the law that would legally justify its passage and [enforcement] whether for reasons of public policy, public order or morality, and that therefore the enactment of Republic Act [No.] 4880 under, the guise of regulation is but a clear and simple abridgment of the constitutional rights of freedom of speech, freedom of assembly and the right to form associations and societies for purposes not contrary to law, ..." There was the further allegation that the nomination of a candidate and the fixing of period of election campaign are matters of political expediency and convenience which only political parties can regulate or curtail by and among themselves through self-restraint or mutual understanding or agreement and that the regulation and limitation of these political matters invoking the police power, in the absence of clear and present danger to the state, would render the constitutional rights of petitioners meaningless and without effect. To the plea of petitioners that after hearing, Republic Act No. 4880 be declared unconstitutional, null and void, respondent Commission on Elections, in its answer filed on August 1, 1967, after denying the allegations as to the validity of the act "for being mere conclusions of law, erroneous at that," and setting forth special affirmative defenses, procedural and substantive character, would have this Court dismiss the petition. Thereafter the case was set for hearing on August 3, 1967. On the same date a resolution was passed by us to the following effect: "At the hearing of case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F. Reyes Cabigao appeared for the petitioners and Atty. Ramon Barrios appeared for the respondent and they were given a period of four days from today within which to submit, simultaneously,, their respective memorandum in lieu of oral argument." On August 9, 1967, another resolution, self-explanatory in character, came from this Court. Thus: "In ease G.R. No. L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), the Court, with eight (8) Justice present, having deliberated on the issue of the constitutionality of Republic Act No. 4880; and a divergence of views having developed among the Justices as to the constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised Election Code: considering the Constitutional provision that "no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the (Supreme) Court' (sec. 10, Art, VII), the Court [resolved] to defer final voting on the issue until after the return of the Justices now on official leave." The case was then reset for oral argument. At such hearing, one of the co-petitioners, now Vice-Mayor Felicisimo Cabigao of the City of Manila acting as counsel, assailed the validity of the challenged legislation relying primarily on American Supreme Court opinion that warn against curtailment in whatever guise or form of the cherished freedoms of expression, of assemble and of association, all embraced in the First Amendment of the United States Constitution. Respondent Commission on Elections was duly represented by Atty. Ramon Barrios. Senator Lorenzo M. Tañada was asked to appear as amicus curiae. That he did, arguing most impressively with a persuasive exposition of the existence of undeniable conditions that imperatively called for regulation of the electoral process and with full recognition that Act No. 4880 could indeed be looked upon as a limitation on the preferred rights of speech and press, of assembly and of association. He did justify its enactment however under the clear and present danger doctrine, there being the substantive evil of elections, whether for national or local officials, being debased and degraded by unrestricted campaigning, excess of partisanship and undue concentration in politics with the loss not only of efficiency in government but of lives as well. The matter was then discussed in conference, but no final action was taken. The divergence of views with reference to the paragraphs above mentioned having continued, on Oct. 10, 1968, this Court, by resolution, invited certain entities to submit memoranda as amici curiae on the question of the validity of R.A. Act No. 4880. The Philippine Bar Association, the Civil Liberties Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were included, among them. They did file their respective memoranda with this Court and aided it in the consideration of the constitutional issues involved.

1. In the course of the deliberations, a serious procedural objection was raised by five members of the Court. 6 It is their view that respondent Commission on Elections not being sought to be restrained from performing any specific act, this suit cannot be characterized as other than a mere request for an advisory opinion. Such a view, from the remedial law standpoint, has much to recommend it. Nonetheless, a majority would affirm, the original stand that under the circumstances it could still rightfully be treated as a petition for prohibition. The language of Justice Laurel fits the case "All await the decision of this Court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its] constitutionality ... be now resolved." 7 It may likewise be added that the exceptional character of the situation that confronts us, the paramount public interest, and the undeniable necessity for a ruling, the national elections being, barely six months away, reinforce our stand. It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the enforcement of an alleged unconstitutional statute. We are left with no choice then; we must act on the matter. There is another procedural obstacle raised by respondent to be hurdled. It is not insuperable. It is true that ordinarily, a party who impugns the validity of a statute or ordinance must have a substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. 8 Respondent cannot see such interest as being possessed by petitioners. It may indicate the clarity of vision being dimmed, considering that one of the petitioners was a candidate for an elective position. Even if such were the case, however, the objection is not necessarily fatal. In this jurisdiction, the rule has been sufficiently relaxed to allow a taxpayer to bring an action to restrain the expenditure of public funds through the enforcement of an invalid or unconstitutional legislative measure. 9 2. In the answer of the respondent as well as its memorandum, stress was laid on Republic Act No. 4880 as an exercise of the police power of the state, designed to insure a free, orderly and honest election by regulating "conduct which Congress has determined harmful if unstrained and carried for a long period before elections it necessarily entails huge expenditures of funds on the part of the candidates, precipitates violence and even deaths, results in the corruption of the electorate, and inflicts direful consequences upon public interest as the vital affairs of the country are sacrificed to purely partisan pursuits." Evidently for respondent that would suffice to meet the constitutional questions raised as to the alleged infringement of free speech, free press, freedom of assembly and 'freedom' of association. Would it were as simple as that? An eloquent excerpt from a leading American decision 10 admonishes though against such a cavalier approach. "The case confronts us again with the duty our system places on this Court to say where the individual's, freedom ends the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual. presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment.... That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice..." Even a leading American State court decision on a regulatory measure dealing with elections, cited in the answer of respondent, militates against a stand minimizing the importance and significance of the alleged violation of individual rights: "As so construed by us, it has not been made to appear that section 8189, Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face violative of any provision of either the state or Federal Constitution on the subject of free speech or liberty of the press, nor that its operation is in any wise subversive of any one's constitutional liberty." 11Another leading State decision is much more emphatic: "Broad as the power of the legislature is with respect to regulation of elections, that power is not wholly without limitation. Under the guise of regulating elections, the legislature may not deprive a citizen of the right of trial by jury. A person charged with its violation may not be compelled to give evidence against himself. If it destroys the right of free speech, it is to that extent void." 12 The question then of the alleged violation of Constitutional rights must be squarely met.lawphi1.nêt 3. Now as to the merits. A brief resume of the basic rights on which petitioners premise their stand that the act is unconstitutional may prove illuminating. The primacy, the high estate accorded freedom of expression is of course a fundamental

postulate of our constitutional system. No law shall be passed abridging the freedom of speech or of the press .... 13 What does it embrace? At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. 14 There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, 15prosecution for sedition, 16 or action for damages, 17 or contempt proceedings 18 unless there be a clear and present danger of substantive evil that Congress has a right to prevent. The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring individual self-fulfillment, of attaining the truth, of assuring participation by the people in social including political decision-making, and of maintaining the balance between stability and change. 19 The trend as reflected in Philippine and American decisions is to recognize the broadcast scope and assure the widest latitude to this constitutional guaranty. It represents a profound commitment to the principle that debate of public issue should be uninhibited, robust, and wideopen. 20 It is not going too far, according to another American decision, to view the function of free speech as inviting dispute. "It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 21 Freedom of speech and of the press thus means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, to take refuge in the existing climate of opinion on any matter of public consequence. So atrophied, the right becomes meaningless. The right belongs as well, if not more, for those who question, who do not conform, who differ. To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. 22 So with Emerson one may conclude that "the theory of freedom of expression involves more than a technique for arriving at better social judgments through democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an age that was awakened and invigorated by the idea of new society in which man's mind was free, his fate determined by his own powers of reason, and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a creative, progressive, exciting and intellectually robust community. It contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative of a society that is tyrannical, conformist, irrational and stagnant." 23 From the language of the specified constitutional provision, it would appear that the right is not susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however a literal interpretation. Freedom of expression is not an absolute. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition. How is it to be limited then? This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply an acceptable criterion for permissible restriction. Thus: "These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented." It has the advantage of establishing according to the above decision "a definite rule in constitutional law. It provides the criterion as to what words may be public established." The Cabansag case likewise referred to the other test, the "dangerous tendency" rule and explained it thus: "If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. We posed the issue thus: "Has the letter of Cabansag created a sufficient danger to a fair administration of justice? Did its remittance to the PCAC create a danger sufficiently imminent to come under the two rules mentioned above?" The choice of this Court was manifest and indisputable. It adopted the clear and present danger test. As a matter of fact, in an earlier decision, Primicias v. Fugoso, 25 there was likewise an implicit acceptance of the clear and present danger doctrine.

Why repression is permissible only when the danger of substantive evil is present is explained by Justice Branders thus: ... the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." 26 For him the apprehended evil must be "relatively serious." For "[prohibition] of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society." Justice Black would go further. He would require that the substantive evil be "extremely serious." 27 Only thus may there be a realization of the ideal envisioned by Cardozo: "There shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme borders where thought merges into action." 28 It received its original formulation from Holmes. Thus: "The question in every case is whether the words used in such circumstances and of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 29 This test then as a limitation on freedom of expression is justified by the danger or evil a substantive character that the state has a right to prevent. Unlike the dangerous tendency doctrine, the danger must not only be clear but also present. The term clear seems to point to a causal connection with the danger of the substantially evil arising from the utterance questioned. Present refers to the time element. It used to be identified with imminent and immediate danger. The danger must not only be probable but very likely inevitable. 4. How about freedom of assembly? The Bill of Rights as thus noted prohibits abridgment by law of freedom of speech or of the press. It likewise extends the same protection to the right of the people peaceably to assemble. As was pointed out by Justice Malcolm in the case of United States v. Bustos, 30 this right is a necessary consequence of our republican institution and complements the right of free speech. Assembly means a right on the part of citizens to meet peaceably for consultation in respect to public affairs. From the same Bustos opinion: "Public policy, the welfare of society and orderly administration of government have demanded protection for public opinion." To paraphrase the opinion of Justice Rutledge speaking for the majority in Thomas v. Collins,31 it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights while not identical are inseparable. They are cognate rights and the assurance afforded by the clause of this section of the Bill of Rights wherein they are contained, applies to all. As emphatically put in the leading case of United States v. Cruikshank, 32 "the very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for redress of grievances." As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. 5. Our Constitution likewise recognizes the freedom to form association for purposes not contrary to law. 33 With or without a constitutional provision of this character, it may be assumed that the freedom to organize or to be a member of any group or society exists. With this explicit provision, whatever doubts there may be on the matter are dispelled. Unlike the cases of other guarantee which are mostly American in origin, this particular freedom has an indigenous cast. It can trace its origin to the Malolos Constitution. In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas that it is primarily the first amendment of her Constitution, which safeguards freedom of speech and of the press, of assembly and of petition "that provides [associations] with the protection they need if they are to remain viable and continue to contribute to our Free Society." 34 He adopted the view of De Tocqueville on the importance and the significance of the freedom to associate. Thus: "The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to me almost inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundation of society." 35 There can be no dispute as to the soundness of the above observation of De Tocqueville. Since man lives in social it would be a barren existence if he could not freely associate with others of kindred persuasion or of congenial frame of mind. As a matter of fact, the more common form of associations may be likely to be fraternal, cultural, social or religious. Thereby, for almost everybody, save for those exceptional few who glory in aloofness and isolation life is enriched and becomes more meaningful.

In a sense, however, the stress on this freedom of association should be on its political significance. If such a right were non-existent then the likelihood of a one-party government is more than a possibility. Authoritarianism may become unavoidable. Political opposition will simply cease to exist; minority groups may be outlawed, constitutional democracy as intended by the Constitution may well become a thing of the past. Political parties which, as is originally the case, assume the role alternately of being in the majority or in the minority as the will of the electorate dictates, will lose their constitutional protection. It is undeniable therefore, that the utmost scope should be afforded this freedom of association. It is indispensable not only for its enhancing the respect that should be accorded a human personality but equally so for its assurance that the wishes of any group to oppose whatever for the moment is the party in power and with the help of the electorate to set up its own program of government would not be nullified or frustrated. To quote from Douglas anew: "Justice Frankfurter thought that political and academic affiliations have a preferred position under the due process version of the First Amendment. But the associational rights protected by the First Amendment are in my view much broader and cover the entire spectrum in political ideology as well as in art, in journalism, in teaching, and in religion. In my view, government can neither legislate with respect to nor probe the intimacies of political, spiritual, or intellectual relationships in the myriad of lawful societies and groups, whether popular or unpopular, that exist in this country." 36 Nonetheless, the Constitution limits this particular freedom in the sense that there could be an abridgment of the right to form associations or societies when their purposes are "contrary to law". How should the limitation "for purposes not contrary to law" be interpreted? It is submitted that it is another way of expressing the clear and present danger rule for unless an association or society could be shown to create an imminent danger to public safety, there is no justification for abridging the right to form association societies.37 As was so aptly stated: "There is no other course consistent with the Free Society envisioned by the First Amendment. For the views a citizen entertains, the beliefs he harbors, the utterances he makes, the ideology he embraces, and the people he associates with are no concern to government — until and unless he moves into action. That article of faith marks indeed the main difference between the Free Society which we espouse and the dictatorships both on the Left and on the Right." 38 With the above principles in mind, we now consider the validity of the prohibition in Republic Act No. 4880 of the too early nomination of candidates and the limitation found therein on the period of election campaign or partisan political activity alleged by petitioners to offend against the rights of free speech, free press, freedom of assembly and freedom of association. In effect what are asked to do is to declare the act void on its face evidence having been introduced as to its actual operation. There is respectable authority for the court having the power to so act. Such fundamental liberties are accorded so high a place in our constitutional scheme that any alleged infringement manifest in the wording of statute cannot be allowed to pass unnoticed. 39 In considering whether it is violative of any of the above rights, we cannot ignore of course the legislative declaration that its enactment was in response to a serious substantive evil affecting the electoral process, not merely in danger of happening, but actually in existence, and likely to continue unless curbed or remedied. To assert otherwise would be to close one's eyes to the realities of the situation. Nor can we ignore the express legislative purpose apparent in the proviso "that simple expressions of opinion and thoughts concerning the election shall not be considered as part of an election campaign," and in the other proviso "that nothing herein stated shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports." Such limitations qualify the entire provision restricting the period of an election campaign or partisan political activity. The prohibition of too early nomination of candidates presents a question that is not too formidable in character. According to the act: "It shall be unlawful for any political party political committee, or political group to nominate candidates for any elective public officio voted for at large earlier than one hundred and fifty days immediately preceding an election, and for any other elective public, office earlier than ninety days immediately preceding an election." 40 The right of association is affected. Political parties have less freedom as to the time during which they may nominate candidates; the curtailment is not such, however, as to render meaningless such a basic right. Their scope of legitimate activities, save this one, is not unduly narrowed. Neither is there infringement of their freedom to assemble. They can do so, but not for such a purpose. We sustain in validity. We do so unanimously.

The limitation on the period of "election campaign" or "partisan political activity" calls for a more intensive scrutiny. According to Republic Act No. 4880: "It is unlawful for any person whether or not a voter or candidate, or for any group or association of persons whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office. The term 'candidate' refers to any person aspiring for or seeking an elective public office, regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate. The term 'election campaign' or 'partisan political activity' refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office ..." If that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken down. What other conclusion can there be extending as it does to so wide and all-encompassing a front that what is valid, being a legitimate exercise of press freedom as well as freedom of assembly, becomes prohibited? That cannot be done; such an undesirable eventuality, this Court cannot allow to pass. It is a well-settled principle that stricter standard of permissible statutory vagueness may be applied to a statute having inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.41 Where the statutory provision then operates to inhibit the exercise of individual freedom affirmatively protected by the Constitution, the imputation of vagueness sufficient to invalidate the statute is inescapable. 42 The language of Justice Douglas, both appropriate and vigorous, comes to mind: "Words which are vague and fluid ... may be as much of a trap for the innocent as the ancient laws of Caligula." 43 Nor is the reason difficult to discern: ."These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." 44 7. The constitutional objections are thus formidable. It cannot be denied that the limitations thus imposed on the constitutional rights of free speech and press, of assembly, and of association cut deeply, into their substance. This on the one hand. On the other, it cannot be denied either that evils substantial in character taint the purity of the electoral process. There can be under the circumstances then no outright condemnation of the statute. It could not be said to be unwarranted, much less arbitrary. There is need for refraining from the outright assumption that the constitutional infirmity is apparent from a mere reading thereof. For under circumstances that manifest abuses of the gravest character, remedies much more drastic than what ordinarily would suffice would indeed be called for. The justification alleged by the proponents of the measures weighs heavily with the members of the Court, though in varying degrees, in the appraisal of the aforesaid restrictions to which such precious freedoms are subjected. They are not unaware of the clear and present danger that calls for measures that may bear heavily on the exercise of the cherished rights of expression, of assembly, and of association. This is not to say, that once such a situation is found to exist there is no limit to the allowable limitations on such constitutional rights. The clear and present danger doctrine rightly viewed requires that not only should there be an occasion for the imposition of such restrictions but also that they be limited in scope. There are still constitutional questions of a serious character then to be faced. The practices which the act identifies with "election campaign" or "partisan political activity" must be such that they are free from the taint of being violative of free speech, free press, freedom of assembly, and freedom of association. What removes the sting from constitutional objection of vagueness is the enumeration of the acts deemed included in the terms "election campaign" or "partisan political activity." They are: "(a) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate or party;(c) making speeches, announcements or commentaries or holding interviews for or against the election or any party or candidate for public office; (d) publishing or distributing campaign literature or materials; (e) directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any party; (f) giving, soliciting, or receiving contributions for election campaign

purposes, either directly or indirectly." 45 As thus limited the objection that may be raised as to vagueness has been minimized, if not totally set at rest. 46 8. This Court, with the aforementioned five Justices unable to agree, is of the view that no unconstitutional infringement exists insofar as the formation of organization, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party is restricted 47 and that the prohibition against giving, soliciting, or receiving contribution for election purposes, either directly or indirectly, is equally free from constitutional infirmity. 48 The restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party, 49 leaving untouched all other legitimate exercise of such poses a more difficult question. Nevertheless, after a thorough consideration, and with the same Justices entertaining the opposite conviction, we reject the contention that it should be annulled. Candor compels the admission that the writer of this opinion suffers from the gravest doubts. For him, such statutory prescription could very well be within the outermost limits of validity, beyond which lies the abyss of unconstitutionality. The other acts, likewise deemed included in "election campaign" or "partisan political activity" tax to the utmost the judicial predisposition to view with sympathy legislative efforts to regulate election practices deemed inimical, because of their collision with the preferred right of freedom of expression. From the outset, such provisions did occasion divergence of views among the members of the Court. Originally only a minority was for their being adjudged as invalid. It is not so. any more. 50 This is merely to emphasize that the scope of the curtailment to which freedom of expression may be subjected is not foreclosed by the recognition of the existence of a clear and present danger of a substantive evil, the debasement of the electoral process. The majority of the Court is thus of the belief that the solicitation or undertaking of any campaign or propaganda whether directly or indirectly, by an individual, 51 the making of speeches, announcements or commentaries or holding interview for or against the election for any party or candidate for public office, 52 or the publication or distribution of campaign literature or materials, 53 suffer from the corrosion of invalidity. It lacks however one more affirmative vote to call for a declaration of unconstitutionality. This is not to deny that Congress was indeed called upon to seek remedial measures for the far-from-satisfactory condition arising from the too-early nomination of candidates and the necessarily prolonged, political campaigns. The direful consequences and the harmful effects on the public interest with the vital affairs of the country sacrificed many a time to purely partisan pursuits were known to all. Moreover, it is no exaggeration to state that violence and even death did frequently occur because of the heat engendered by such political activities. Then, too, the opportunity for dishonesty and corruption, with the right to suffrage being bartered, was further magnified. Under the police power then, with its concern for the general welfare and with the commendable aim of safe-guarding the right of suffrage, the legislative body must have felt impelled to impose the foregoing restrictions. It is understandable for Congress to believe that without the limitations thus set forth in the challenged legislation, the laudable purpose of Republic Act No. 4880 would be frustrated and nullified. Whatever persuasive force such approach may command failed to elicit the assent of a majority of the Court. This is not to say that the conclusion reached by the minority that the above poisons of the statute now assailed has passed the constitutional test is devoid of merit. It only indicates that for the majority, the prohibition of any speeches, announcements or commentaries, or the holding of interviews for or against the election of any party or candidate for public office and the prohibition of the publication or distribution of campaign literature or materials, against the solicitation of votes whether directly or indirectly, or the undertaking of any campaign literature or propaganda for or against any candidate or party is repugnant to a constitutional command. To that extent, the challenged statute prohibits what under the Constitution cannot by any law be abridged. More specifically, in terms of the permissible scope of legislation that otherwise could be justified under the clear and present danger doctrine, it is the consideration opinion of the majority, though lacking the necessary vote for an adjudication of invalidity, that the challenged statute could have been more narrowly drawn and the practices

prohibited more precisely delineated to satisfy the constitutional requirements as to a valid limitation under the clear and present danger doctrine.

renounce the life breathed into it by the Constitution, so may it not forego its obligation, in proper cases, to apply the necessary,..." 61

In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite standards in a legislation of its character is fatal. 54 Where, as in the case of the above paragraphs, the majority of the Court could discern "an over breadth that makes possible oppressive or capricious application" 55 of the statutory provisions, the line dividing the valid from the constitutionally infirm has been crossed. Such provisions offend the constitutional principle that "a governmental purpose constitutionally subject to control or prevent activities state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. 56

We recognize the wide discretion accorded Congress to protect vital interests. Considering the responsibility incumbent on the judiciary, it is not always possible, even with the utmost sympathy shown for the legislative choice of means to cure an admitted evil, that the legislative judgment arrived at, with its possible curtailment of the preferred freedoms, be accepted uncritically. There may be times, and this is one of them, with the majority, with all due reject to a coordinate branch, unable to extend their approval to the aforesaid specific provisions of one of the sections of the challenged statute. The necessary two-third vote, however, not being obtained, there is no occasion for the power to annul statutes to come into play.

It is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. 57 For precision of regulation is the touchstone in an area so closely related to our most precious freedoms. 58

Such being the case, it is the judgment of this Court that Republic Act No. 4880 cannot be declared unconstitutional.

Under the circumstances then, a majority of the Court feels compelled to view the statutory provisions in question as unconstitutional on their face inasmuch as they appear to range too widely and indiscriminately across the fundamental liberties associated with freedom of the mind. 59 Such a conclusion does not find favor with the other members of the Court. For this minority group, no judgment of nullity insofar as the challenged sections are concerned is called for. It cannot accept the conclusion that the limitations thus imposed on freedom of expression vitiated by their latitudinarian scope, for Congress was not at all insensible to the problem that an all-encompassing coverage of the practices sought to be restrained would seriously pose. Such an approach finds support in the exposition made by the author of the measure, Senator Lorenzo M. Tañada, appearing before us as amicus curiae. He did clearly explain that such provisions were deemed by the legislative body to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as violence that of late has invariably marred election campaigns and partisan political activities in this country. He did invite our attention likewise to the well-settled doctrine that in the choice of remedies for an admitted malady requiring governmental action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or disregarded. More than that, he would stress the two provisos already mentioned, precisely placed in the state as a manifestation of the undeniable legislative determination not to transgress the preferred freedom of speech, of press, of assembly and of association. It is thus provided: "That simple expressions or opinion and thoughts concerning the election shall not be considered as part of an election campaign [and that nothing in the Act] shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports. 60 If properly implemented then, as it ought to, the barrier to free, expression becomes minimal and far from unwarranted. For the minority of the Court, all of the above arguments possess sufficient persuasive force to blunt whatever cutting edge may be ascribed to the fears entertained that Congress failed to abide by what the Constitution commands as far as freedom of the mind and of association are concerned. It is its opinion that it would be premature to say the least, for a judgment of nullity of any provision found in Republic Act No. 4880. The need for adjudication arises only if in the implementation of the Act, there is in fact an unconstitutional application of its provisions. Nor are we called upon, under this approach, to anticipate each and every problem that may arise. It is time enough to consider it when there is in fact an actual, concrete case that requires an exercise of judicial power. 9. To recapitulate, we give due recognition to the legislative concern to cleanse, and, if possible, render spotless, the electoral process. There is full acceptance by the Court of the power of Congress, under narrowly drawn legislation to impose the necessary restrictions to what otherwise would be liberties traditionally accorded the widest scope and the utmost deference, freedom of speech and of the press, of assembly, and of association. We cannot, however, be recreant to the trust reposed on us; we are called upon to safeguard individual rights. In the language of Justice Laurel: "This Court is perhaps the last bulwark of constitutional government. It shall not obstruct the popular will as manifested through proper organs... But, in the same way that it cannot

WHEREFORE, the petition is dismissed and the writ of prayed for denied. Without costs. Concepcion, C.J., Reyes, J.B.L., Makalintal and Teehankee, JJ., concur in the result.

Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. 1928 August 3, 1978 In the Matter of the IBP Membership Dues Delinquency of Atty. MARCIAL A. EDILION (IBP Administrative Case No. MDD-1)

SECTION 1. Organization. — There is hereby organized an official national body to be known as the 'Integrated Bar of the Philippines,' composed of all persons whose names now appear or may hereafter be included in the Roll of Attorneys of the Supreme Court. The obligation to pay membership dues is couched in the following words of the Court Rule:

RESOLUTION SEC. 9. Membership dues. Every member of the Integrated Bar shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court. ... CASTRO, C.J.: The respondent Marcial A. Edillon is a duly licensed practicing attorney in the Philippines. On November 29, 1975, the Integrated Bar of the Philippines (IBP for short) Board of Governors unanimously adopted Resolution No. 75-65 in Administrative Case No. MDD-1 (In the Matter of the Membership Dues Delinquency of Atty. Marcial A. Edillon) recommending to the Court the removal of the name of the respondent from its Roll of Attorneys for "stubborn refusal to pay his membership dues" to the IBP since the latter's constitution notwithstanding due notice. On January 21, 1976, the IBP, through its then President Liliano B. Neri, submitted the said resolution to the Court for consideration and approval, pursuant to paragraph 2, Section 24, Article III of the By-Laws of the IBP, which reads: .... Should the delinquency further continue until the following June 29, the Board shall promptly inquire into the cause or causes of the continued delinquency and take whatever action it shall deem appropriate, including a recommendation to the Supreme Court for the removal of the delinquent member's name from the Roll of Attorneys. Notice of the action taken shall be sent by registered mail to the member and to the Secretary of the Chapter concerned. On January 27, 1976, the Court required the respondent to comment on the resolution and letter adverted to above; he submitted his comment on February 23, 1976, reiterating his refusal to pay the membership fees due from him. On March 2, 1976, the Court required the IBP President and the IBP Board of Governors to reply to Edillon's comment: on March 24, 1976, they submitted a joint reply. Thereafter, the case was set for hearing on June 3, 1976. After the hearing, the parties were required to submit memoranda in amplification of their oral arguments. The matter was thenceforth submitted for resolution. At the threshold, a painstaking scrutiny of the respondent's pleadings would show that the propriety and necessity of the integration of the Bar of the Philippines are in essence conceded. The respondent, however, objects to particular features of Rule of Court 139-A (hereinafter referred to as the Court Rule) 1 — in accordance with which the Bar of the Philippines was integrated — and to the provisions of par. 2, Section 24, Article III, of the IBP By-Laws (hereinabove cited). The authority of the IBP Board of Governors to recommend to the Supreme Court the removal of a delinquent member's name from the Roll of Attorneys is found in par. 2 Section 24, Article Ill of the IBP By-Laws (supra), whereas the authority of the Court to issue the order applied for is found in Section 10 of the Court Rule, which reads: SEC. 10. Effect of non-payment of dues. — Subject to the provisions of Section 12 of this Rule, default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys. The all-encompassing, all-inclusive scope of membership in the IBP is stated in these words of the Court Rule:

The core of the respondent's arguments is that the above provisions constitute an invasion of his constitutional rights in the sense that he is being compelled, as a precondition to maintaining his status as a lawyer in good standing, to be a member of the IBP and to pay the corresponding dues, and that as a consequence of this compelled financial support of the said organization to which he is admittedly personally antagonistic, he is being deprived of the rights to liberty and property guaranteed to him by the Constitution. Hence, the respondent concludes, the above provisions of the Court Rule and of the IBP By-Laws are void and of no legal force and effect. The respondent similarly questions the jurisdiction of the Court to strike his name from the Roll of Attorneys, contending that the said matter is not among the justiciable cases triable by the Court but is rather of an "administrative nature pertaining to an administrative body." The case at bar is not the first one that has reached the Court relating to constitutional issues that inevitably and inextricably come up to the surface whenever attempts are made to regulate the practice of law, define the conditions of such practice, or revoke the license granted for the exercise of the legal profession. The matters here complained of are the very same issues raised in a previous case before the Court, entitled "Administrative Case No. 526, In the Matter of the Petition for the Integration of the Bar of the Philippines, Roman Ozaeta, et al., Petitioners." The Court exhaustively considered all these matters in that case in its Resolution ordaining the integration of the Bar of the Philippines, promulgated on January 9, 1973. The Court there made the unanimous pronouncement that it was ... fully convinced, after a thoroughgoing conscientious study of all the arguments adduced in Adm. Case No. 526 and the authoritative materials and the mass of factual data contained in the exhaustive Report of the Commission on Bar Integration, that the integration of the Philippine Bar is 'perfectly constitutional and legally unobjectionable'. ... Be that as it may, we now restate briefly the posture of the Court. An "Integrated Bar" is a State-organized Bar, to which every lawyer must belong, as distinguished from bar associations organized by individual lawyers themselves, membership in which is voluntary. Integration of the Bar is essentially a process by which every member of the Bar is afforded an opportunity to do his share in carrying out the objectives of the Bar as well as obliged to bear his portion of its responsibilities. Organized by or under the direction of the State, an integrated Bar is an official national body of which all lawyers are required to be members. They are, therefore, subject to all the rules prescribed for the governance of the Bar, including the requirement of payment of a reasonable annual fee for the effective discharge of the purposes of the Bar, and adherence to a code of professional ethics or professional responsibility breach of which constitutes sufficient reason for investigation by the Bar and, upon proper cause appearing, a recommendation for discipline or disbarment of the offending member. 2 The integration of the Philippine Bar was obviously dictated by overriding considerations of public interest and public welfare to such an extent as more than constitutionally and legally justifies the restrictions that integration imposes upon the personal interests and personal convenience of individual lawyers. 3 Apropos to the above, it must be stressed that all legislation directing the integration of the Bar have been uniformly and universally sustained as a valid exercise of the police power over an important profession. The practice of law is not a vested right but a privilege, a privilege moreover clothed with public interest because a lawyer owes

substantial duties not only to his client, but also to his brethren in the profession, to the courts, and to the nation, and takes part in one of the most important functions of the State — the administration of justice — as an officer of the court. 4 The practice of law being clothed with public interest, the holder of this privilege must submit to a degree of control for the common good, to the extent of the interest he has created. As the U. S. Supreme Court through Mr. Justice Roberts explained, the expression "affected with a public interest" is the equivalent of "subject to the exercise of the police power" (Nebbia vs. New York, 291 U.S. 502). When, therefore, Congress enacted Republic Act No. 6397 5 authorizing the Supreme Court to "adopt rules of court to effect the integration of the Philippine Bar under such conditions as it shall see fit," it did so in the exercise of the paramount police power of the State. The Act's avowal is to "raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively." Hence, the Congress in enacting such Act, the Court in ordaining the integration of the Bar through its Resolution promulgated on January 9, 1973, and the President of the Philippines in decreeing the constitution of the IBP into a body corporate through Presidential Decree No. 181 dated May 4, 1973, were prompted by fundamental considerations of public welfare and motivated by a desire to meet the demands of pressing public necessity. The State, in order to promote the general welfare, may interfere with and regulate personal liberty, property and occupations. Persons and property may be subjected to restraints and burdens in order to secure the general prosperity and welfare of the State (U.S. vs. Gomez Jesus, 31 Phil 218), for, as the Latin maxim goes, "Salus populi est supreme lex." The public welfare is the supreme law. To this fundamental principle of government the rights of individuals are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority because then society win fall into anarchy (Calalang vs. Williams, 70 Phil. 726). It is an undoubted power of the State to restrain some individuals from all freedom, and all individuals from some freedom. But the most compelling argument sustaining the constitutionality and validity of Bar integration in the Philippines is the explicit unequivocal grant of precise power to the Supreme Court by Section 5 (5) of Article X of the 1973 Constitution of the Philippines, which reads: Sec. 5. The Supreme Court shall have the following powers: xxx xxx xxx (5) Promulgate rules concerning pleading, practice, and pro. procedure in all courts, and the admission to the practice of law and the integration of the Bar ..., and Section 1 of Republic Act No. 6397, which reads: SECTION 1. Within two years from the approval of this Act, the Supreme Court may adopt rules of Court to effect the integration of the Philippine Bar under such conditions as it shall see fit in order to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively. Quite apart from the above, let it be stated that even without the enabling Act (Republic Act No. 6397), and looking solely to the language of the provision of the Constitution granting the Supreme Court the power "to promulgate rules concerning pleading, practice and procedure in all courts, and the admission to the practice of law," it at once becomes indubitable that this constitutional declaration vests the Supreme Court with plenary power in all cases regarding the admission to and supervision of the practice of law. Thus, when the respondent Edillon entered upon the legal profession, his practice of law and his exercise of the said profession, which affect the society at large, were (and are) subject to the power of the body politic to require him to conform to such regulations as might be established by the proper authorities for the common good, even to the extent of interfering with some of his liberties. If he did not wish to submit himself to such reasonable interference and regulation, he should not have clothed the public with an interest in his concerns. On this score alone, the case for the respondent must already fall.

The issues being of constitutional dimension, however, we now concisely deal with them seriatim. 1. The first objection posed by the respondent is that the Court is without power to compel him to become a member of the Integrated Bar of the Philippines, hence, Section 1 of the Court Rule is unconstitutional for it impinges on his constitutional right of freedom to associate (and not to associate). Our answer is: To compel a lawyer to be a member of the Integrated Bar is not violative of his constitutional freedom to associate. 6 Integration does not make a lawyer a member of any group of which he is not already a member. He became a member of the Bar when he passed the Bar examinations. 7 All that integration actually does is to provide an official national organization for the well-defined but unorganized and incohesive group of which every lawyer is a ready a member. 8 Bar integration does not compel the lawyer to associate with anyone. He is free to attend or not attend the meetings of his Integrated Bar Chapter or vote or refuse to vote in its elections as he chooses. The only compulsion to which he is subjected is the payment of annual dues. The Supreme Court, in order to further the State's legitimate interest in elevating the quality of professional legal services, may require that the cost of improving the profession in this fashion be shared by the subjects and beneficiaries of the regulatory program — the lawyers.9 Assuming that the questioned provision does in a sense compel a lawyer to be a member of the Integrated Bar, such compulsion is justified as an exercise of the police power of the State. 10 2. The second issue posed by the respondent is that the provision of the Court Rule requiring payment of a membership fee is void. We see nothing in the Constitution that prohibits the Court, under its constitutional power and duty to promulgate rules concerning the admission to the practice of law and the integration of the Philippine Bar (Article X, Section 5 of the 1973 Constitution) — which power the respondent acknowledges — from requiring members of a privileged class, such as lawyers are, to pay a reasonable fee toward defraying the expenses of regulation of the profession to which they belong. It is quite apparent that the fee is indeed imposed as a regulatory measure, designed to raise funds for carrying out the objectives and purposes of integration. 11 3. The respondent further argues that the enforcement of the penalty provisions would amount to a deprivation of property without due process and hence infringes on one of his constitutional rights. Whether the practice of law is a property right, in the sense of its being one that entitles the holder of a license to practice a profession, we do not here pause to consider at length, as it clear that under the police power of the State, and under the necessary powers granted to the Court to perpetuate its existence, the respondent's right to practise law before the courts of this country should be and is a matter subject to regulation and inquiry. And, if the power to impose the fee as a regulatory measure is recognize, then a penalty designed to enforce its payment, which penalty may be avoided altogether by payment, is not void as unreasonable or arbitrary. 12 But we must here emphasize that the practice of law is not a property right but a mere privilege, 13 and as such must bow to the inherent regulatory power of the Court to exact compliance with the lawyer's public responsibilities. 4. Relative to the issue of the power and/or jurisdiction of the Supreme Court to strike the name of a lawyer from its Roll of Attorneys, it is sufficient to state that the matters of admission, suspension, disbarment and reinstatement of lawyers and their regulation and supervision have been and are indisputably recognized as inherent judicial functions and responsibilities, and the authorities holding such are legion. 14 In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of the Board of Bar Commissioners in a disbarment proceeding was confirmed and disbarment ordered, the court, sustaining the Bar Integration Act of Kentucky, said: "The power to regulate the conduct and qualifications of its officers does not depend upon constitutional or statutory grounds. It is a power which is inherent in this court as a court — appropriate, indeed necessary, to the proper administration of justice ... the argument that this is an arbitrary power which the court is arrogating to itself or accepting from the legislative likewise misconceives the nature of the duty. It has limitations no less real because they are inherent. It is an unpleasant task to sit in judgment upon a brother member of the Bar, particularly where, as here, the facts are disputed. It is a grave responsibility, to be assumed only with a determination to uphold the Ideals and

traditions of an honorable profession and to protect the public from overreaching and fraud. The very burden of the duty is itself a guaranty that the power will not be misused or prostituted. ..." The Court's jurisdiction was greatly reinforced by our 1973 Constitution when it explicitly granted to the Court the power to "Promulgate rules concerning pleading, practice ... and the admission to the practice of law and the integration of the Bar ... (Article X, Sec. 5(5) the power to pass upon the fitness of the respondent to remain a member of the legal profession is indeed undoubtedly vested in the Court. We thus reach the conclusion that the provisions of Rule of Court 139-A and of the ByLaws of the Integrated Bar of the Philippines complained of are neither unconstitutional nor illegal. WHEREFORE, premises considered, it is the unanimous sense of the Court that the respondent Marcial A. Edillon should be as he is hereby disbarred, and his name is hereby ordered stricken from the Roll of Attorneys of the Court. Fernando, Teehankee, Barredo, Makasiar, Antonio, Muñoz Palma, Aquino, Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 85279 July 28, 1989 SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, petitioner, vs. THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents. Vicente T. Ocampo & Associates for petitioners.

CORTES, J: Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social Security System Employees Association (SSSEA) from striking and order the striking employees to return to work. Collaterally, it is whether or not employees of the Social Security System (SSS) have the right to strike.

The Court, taking the comment as answer, and noting the reply and supplemental reply filed by petitioners, considered the issues joined and the case submitted for decision. The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case initiated by the SSS and to issue the restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and Employment or the National Labor Relations Commission, since the case involves a labor dispute. On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil service laws and rules and regulations, not the Labor Code, therefore they do not have the right to strike. Since neither the DOLE nor the NLRC has jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking. In dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners, the Court of Appeals held that since the employees of the SSS, are government employees, they are not allowed to strike, and may be enjoined by the Regional Trial Court, which had jurisdiction over the SSS' complaint for damages, from continuing with their strike.

The antecedents are as follows: On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with the SSS; that the strike was reported to the Public Sector Labor - Management Council, which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered damages as a result of the strike. The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants (petitioners herein) be ordered to pay damages; and that the strike be declared illegal.

Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of Appeals erred in finding that the Regional Trial Court did not act without or in excess of jurisdiction when it took cognizance of the case and enjoined the strike are as follows: 1. Do the employees of the SSS have the right to strike? 2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the strikers from continuing with the strike and to order them to return to work? These shall be discussed and resolved seriatim

It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices [Rollo, pp. 21-241]. The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the application for a writ of preliminary injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of jurisdiction over the subject matter [Rollo, pp. 72-82.] To this motion, the SSS filed an opposition, reiterating its prayer for the issuance of a writ of injunction [Rollo, pp. 209222]. On July 22,1987, in a four-page order, the court a quo denied the motion to dismiss and converted the restraining order into an injunction upon posting of a bond, after finding that the strike was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration of the aforesaid order was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition for certiorari and prohibition with preliminary injunction before this Court. Their petition was docketed as G.R. No. 79577. In a resolution dated October 21, 1987, the Court, through the Third Division, resolved to refer the case to the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during its pendency the Court of Appeals on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137]. Petitioners moved to recall the Court of Appeals' decision. In the meantime, the Court on June 29,1988 denied the motion for reconsideration in G.R. No. 97577 for being moot and academic. Petitioners' motion to recall the decision of the Court of Appeals was also denied in view of this Court's denial of the motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant petition to review the decision of the Court of Appeals [Rollo, pp. 12-37]. Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining the petitioners from staging another strike or from pursuing the notice of strike they filed with the Department of Labor and Employment on January 25, 1989 and to maintain the status quo [Rollo, pp. 151-152].

I The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31]. By itself, this provision would seem to recognize the right of all workers and employees, including those in the public sector, to strike. But the Constitution itself fails to expressly confirm this impression, for in the Sub-Article on the Civil Service Commission, it provides, after defining the scope of the civil service as "all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters," that "[t]he right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also provides that "[tlhe right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while there is no question that the Constitution recognizes the right of government employees to organize, it is silent as to whether such recognition also includes the right to strike. Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A reading of the proceedings of the Constitutional Commission that drafted the 1987 Constitution would show that in recognizing the right of government employees to organize, the commissioners intended to limit the right to the formation of unions or associations only, without including the right to strike. Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by Commissioner Ambrosio B. Padilla, Vice-President of the Commission, explained: MR. LERUM. I think what I will try to say will not take that long. When we proposed this amendment providing for self-organization of government employees, it does not

mean that because they have the right to organize, they also have the right to strike. That is a different matter. We are only talking about organizing, uniting as a union. With regard to the right to strike, everyone will remember that in the Bill of Rights, there is a provision that the right to form associations or societies whose purpose is not contrary to law shall not be abridged. Now then, if the purpose of the state is to prohibit the strikes coming from employees exercising government functions, that could be done because the moment that is prohibited, then the union which will go on strike will be an illegal union. And that provision is carried in Republic Act 875. In Republic Act 875, workers, including those from the government-owned and controlled, are allowed to organize but they are prohibited from striking. So, the fear of our honorable Vice- President is unfounded. It does not mean that because we approve this resolution, it carries with it the right to strike. That is a different matter. As a matter of fact, that subject is now being discussed in the Committee on Social Justice because we are trying to find a solution to this problem. We know that this problem exist; that the moment we allow anybody in the government to strike, then what will happen if the members of the Armed Forces will go on strike? What will happen to those people trying to protect us? So that is a matter of discussion in the Committee on Social Justice. But, I repeat, the right to form an organization does not carry with it the right to strike. [Record of the Constitutional Commission, vol. 1, p. 569]. It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code (P.D. 442) in 1974, expressly banned strikes by employees in the Government, including instrumentalities exercising governmental functions, but excluding entities entrusted with proprietary functions: .Sec. 11. Prohibition Against Strikes in the Government. — The terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of this Act that employees therein shall not strike for the purpose of securing changes or modification in their terms and conditions of employment. Such employees may belong to any labor organization which does not impose the obligation to strike or to join in strike: Provided, however, That this section shall apply only to employees employed in governmental functions and not those employed in proprietary functions of the Government including but not limited to governmental corporations. No similar provision is found in the Labor Code, although at one time it recognized the right of employees of government corporations established under the Corporation Code to organize and bargain collectively and those in the civil service to "form organizations for purposes not contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that "[t]he terms and conditions of employment of all government employees, including employees of government owned and controlled corporations, shall be governed by the Civil Service Law, rules and regulations" [now Art. 276]. Understandably, the Labor Code is silent as to whether or not government employees may strike, for such are excluded from its coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter. On June 1, 1987, to implement the constitutional guarantee of the right of government employees to organize, the President issued E.O. No. 180 which provides guidelines for the exercise of the right to organize of government employees. In Section 14 thereof, it is provided that "[t]he Civil Service law and rules governing concerted activities and strikes in the government service shall be observed, subject to any legislation that may be enacted by Congress." The President was apparently referring to Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987 which, "prior to the enactment by Congress of applicable laws concerning strike by government employees ... enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public service." The air was thus cleared of the confusion. At present, in the absence of any legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, they are prohibited from striking, by express provision of Memorandum Circular No. 6 and as implied in E.O. No. 180. [At this juncture, it must be stated that the validity of Memorandum Circular No. 6 is not at issue]. But are employees of the SSS covered by the prohibition against strikes? The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government employees"] and that the SSS is one such government-controlled corporation with an original charter, having been created under R.A. No. 1161, its employees are part of

the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegal. The statement of the Court in Alliance of Government Workers v. Minister of Labor and Employment [G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is relevant as it furnishes the rationale for distinguishing between workers in the private sector and government employees with regard to the right to strike: The general rule in the past and up to the present is that 'the terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law" (Section 11, the Industrial Peace Act, R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as amended). Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements. [At p. 13; Emphasis supplied]. Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to the 1971 Constitutional Convention, and quoted with approval by the Court in Alliance, to wit: It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the peculiar character of the public service, it must necessarily regard the right to strike given to unions in private industry as not applying to public employees and civil service employees. It has been stated that the Government, in contrast to the private employer, protects the interest of all people in the public service, and that accordingly, such conflicting interests as are present in private labor relations could not exist in the relations between government and those whom they employ. [At pp. 16-17; also quoted in National Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA 172,178-179]. E.O. No. 180, which provides guidelines for the exercise of the right to organize of government employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law. Thus: .SECTION 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be the subject of negotiations between duly recognized employees' organizations and appropriate government authorities. The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector to wit: .SECTION 16. The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolution of complaints, grievances and cases involving government employees. In case any dispute remains unresolved after exhausting all the available remedies under existing laws and procedures, the parties may jointly refer the dispute to the [Public Sector Labor- Management] Council for appropriate action. Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Govemment to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government- Employees to Self- Organization, which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and government- owned

and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes thereof." II The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an injunction may be issued to restrain it. It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code itself provides that terms and conditions of employment of government employees shall be governed by the Civil Service Law, rules and regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector Labor - Management Council with jurisdiction over unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute. This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS's complaint for damages and issuing the injunctive writ prayed for therein. Unlike the NLRC, the Public Sector Labor - Management Council has not been granted by law authority to issue writs of injunction in labor disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate. Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded with caution. Thus, after issuing a writ of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the respondent judge, in the same order, admonished the parties to refer the unresolved controversies emanating from their employer- employee relationship to the Public Sector Labor - Management Council for appropriate action [Rollo, p. 86]. III In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply, petitioners allege that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the Court issue a writ of preliminary prohibitive and mandatory injunction to restrain the SSS and its agents from withholding payment thereof and to compel the SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil Service Commission, dated May 5, 1989, which ruled that the officers of the SSSEA who are not preventively suspended and who are reporting for work pending the resolution of the administrative cases against them are entitled to their salaries, yearend bonuses and other fringe benefits and affirmed the previous order of the Merit Systems Promotion Board. The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy is not to petition this Court to issue an injunction, but to cause the execution of the aforesaid order, if it has already become final. WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for review is hereby DENIED and the decision of the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminary and Mandatory Injunction" dated December 13,1988 is DENIED. SO ORDERED. Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 101083 July 30, 1993 JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO, minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners, vs. THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents. Oposa Law Office for petitioners. The Solicitor General for respondents.

DAVIDE, JR., J.: In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth." The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners.1 The complaint2 was instituted as a taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests." The same was filed for themselves and others who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they "represent their generation as well as generations yet unborn."4 Consequently, it is prayed for that judgment be rendered: . . . ordering defendant, his agents, representatives and other persons acting in his behalf to — (1) Cancel all existing timber license agreements in the country; (2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."5 The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species of flora

and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum — approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the "greenhouse effect." Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. This notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course of the trial. As their cause of action, they specifically allege that: CAUSE OF ACTION 7. Plaintiffs replead by reference the foregoing allegations. 8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests constituting roughly 53% of the country's land mass. 9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said rainforests or four per cent (4.0%) of the country's land area. 10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of immature and uneconomical secondary growth forests. 11. Public records reveal that the defendant's, predecessors have granted timber license agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes. A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A". 12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour — nighttime, Saturdays, Sundays and holidays included — the Philippines will be bereft of forest resources after the end of this ensuing decade, if not earlier. 13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will work great damage and irreparable injury to plaintiffs — especially plaintiff minors and their successors — who may never see, use, benefit from and enjoy this rare and unique natural resource treasure. This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he holds in trust for the benefit of plaintiff minors and succeeding generations. 15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to protection by the State in its capacity as the parens patriae. 16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country. A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B". 17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage and extreme prejudice of plaintiffs. 18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been abundantly blessed with. 19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the State — (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other; (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos and; (c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-being. (P.D. 1151, 6 June 1977) 20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the Constitutional policy of the State to — a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution); b. "protect the nation's marine wealth." (Section 2, ibid); c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV, id.); d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." (Section 16, Article II, id.) 21. Finally, defendant's act is contrary to the highest law of humankind — the natural law — and violative of plaintiffs' right to self-preservation and perpetuation. 22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. 6 On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion

is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion. On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss.7 In the said order, not only was the defendant's claim — that the complaint states no cause of action against him and that it raises a political question — sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law of the land. Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but have also joined the latter in this case.8 On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply thereto. Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment. It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question. Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered protected by the said clause, it is well settled that they may still be revoked by the State when the public interest so requires. On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of whether logging should be permitted in the country is a political question which should be properly addressed to the executive or legislative branches of Government. They therefore assert that the petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill that would ban logging totally. As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without due process of law. Once issued, a TLA remains effective for a certain period of time — usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the requirements of due process. Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid

class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an incident to the former. This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety.9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. 10Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come. The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come — generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question: MR. VILLACORTA:

After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows: xxx xxx xxx After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant. Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government. The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11 We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions. The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides: Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. This right unites with the right to health which is provided for in the preceding section of the same article: Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

Does this section mandate the State to provide sanctions against all forms of pollution — air, water and noise pollution? MR. AZCUNA: Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance. 12 The said right implies, among many other things, the judicious management and conservation of the country's forests. Without such forests, the ecological or environmental balance would be irreversiby disrupted. Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other related provisions of the Constitution concerning the conservation, development and utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment and Natural Resources "shall be the primary government agency responsible for the conservation, management, development and proper use of the country's environment and natural resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the following statement of policy: Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and the use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relative to their utilization, development and conservation of our natural resources. This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987,15 specifically in Section 1 thereof which reads: Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent

with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations. (2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources. The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law and higher authority. Said section provides: Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy. (2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources. Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy formulation, and have defined the powers and functions of the DENR. It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and wellbeing." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the said policy. Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty — under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987 — to protect and advance the said right. A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted.

After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties. The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this Court, says: The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred as law. The second part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of the political departments of the government. As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract according to the disposition of the judiciary. In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted: In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . . The last ground invoked by the trial court in dismissing the complaint is the nonimpairment of contracts clause found in the Constitution. The court a quo declared that:

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

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

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

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

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

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

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

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

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

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90777 is hereby set aside. The petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements.

A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576).

No pronouncement as to costs.

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26 . . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L24548, October 27, 1983, 125 SCRA 302]. Since timber licenses are not contracts, the non-impairment clause, which reads: Sec. 10. No law impairing, the obligation of contracts shall be passed. 27 cannot be invoked. In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose, such as law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler Corp. 28 this Court stated: The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare. The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co. vs. Auditor General,30 to wit: Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.

SO ORDERED. Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur. Narvasa, C.J., Puno and Vitug, JJ., took no part.

SECOND DIVISION G.R. No. 126102 December 4, 2000 ORTIGAS & CO. LTD., petitioner, vs. THE COURT OF APPEALS and ISMAEL G. MATHAY III, respondents. DECISION QUISUMBING, J.: This petition seeks to reverse the decision of the Court of Appeals, dated March 25, 1996, in CA-G.R. SP No. 39193, which nullified the writ of preliminary injunction issued by the Regional Trial Court of Pasig City, Branch 261, in Civil Case No. 64931. It also assails the resolution of the appellate court, dated August 13, 1996, denying petitioner’s motion for reconsideration.

On June 16, 1995, the trial court issued the writ of preliminary injunction. On June 29, 1995, Mathay III moved to set aside the injunctive order, but the trial court denied the motion. Mathay III then filed with the Court of Appeals a special civil action for certiorari, docketed as CA-G.R. SP No. 39193, ascribing to the trial court grave abuse of discretion in issuing the writ of preliminary injunction. He claimed that MMC Ordinance No. 8101 classified the area where the lot was located as commercial area and said ordinance must be read into the August 25, 1976 Deed of Sale as a concrete exercise of police power. Ortigas and Company averred that inasmuch as the restrictions on the use of the lot were duly annotated on the title it issued to Emilia Hermoso, said restrictions must prevail over the ordinance, specially since these restrictions were agreed upon before the passage of MMC Ordinance No. 81-01.

The facts of this case, as culled from the records, are as follows: On March 25, 1996, the appellate court disposed of the case as follows: On August 25, 1976, petitioner Ortigas & Company sold to Emilia Hermoso, a parcel of land known as Lot 1, Block 21, Psd-66759, with an area of 1,508 square meters, located in Greenhills Subdivision IV, San Juan, Metro Manila, and covered by Transfer Certificate of Title No. 0737. The contract of sale provided that the lot:

WHEREFORE, in light of the foregoing, the petition is hereby GRANTED. The assailed orders are hereby nullified and set aside. SO ORDERED.2

1. …(1) be used exclusively…for residential purposes only, and not more than one single-family residential building will be constructed thereon,… xxx

In finding for Mathay III, the Court of Appeals held that the MMC Ordinance No. 81-01 effectively nullified the restrictions allowing only residential use of the property in question.

6. The BUYER shall not erect…any sign or billboard on the roof…for advertising purposes…

Ortigas seasonably moved for reconsideration, but the appellate court denied it on August 13, 1996.

xxx

Hence, the instant petition.

11. No single-family residential building shall be erected…until the building plans, specification…have been approved by the SELLER…

In its Memorandum, petitioner now submits that the "principal issue in this case is whether respondent Court of Appeals correctly set aside the Order dated June 16, 1995 of the trial court which issued the writ of preliminary injunction on the sole ground that MMC Ordinance No. 81-01 nullified the building restriction imposing exclusive residential use on the property in question."3 It also asserts that "Mathay III lacks legal capacity to question the validity of conditions of the deed of sale; and he is barred by estoppel or waiver to raise the same question like his principals, the owners."4 Lastly, it avers that the appellate court "unaccountably failed to address" several questions of fact.

xxx 14....restrictions shall run with the land and shall be construed as real covenants until December 31, 2025 when they shall cease and terminate…1 These and the other conditions were duly annotated on the certificate of title issued to Emilia. In 1981, the Metropolitan Manila Commission (now Metropolitan Manila Development Authority) enacted MMC Ordinance No. 81-01, also known as the Comprehensive Zoning Area for the National Capital Region. The ordinance reclassified as a commercial area a portion of Ortigas Avenue from Madison to Roosevelt Streets of Greenhills Subdivision where the lot is located. On June 8, 1984, private respondent Ismael Mathay III leased the lot from Emilia Hermoso and J.P. Hermoso Realty Corp.. The lease contract did not specify the purposes of the lease. Thereupon, private respondent constructed a single story commercial building for Greenhills Autohaus, Inc., a car sales company. On January 18, 1995, petitioner filed a complaint against Emilia Hermoso with the Regional Trial Court of Pasig, Branch 261. Docketed as Civil Case No. 64931, the complaint sought the demolition of the said commercial structure for having violated the terms and conditions of the Deed of Sale. Complainant prayed for the issuance of a temporary restraining order and a writ of preliminary injunction to prohibit petitioner from constructing the commercial building and/or engaging in commercial activity on the lot. The complaint was later amended to implead Ismael G. Mathay III and J.P. Hermoso Realty Corp., which has a ten percent (10%) interest in the lot. In his answer, Mathay III denied any knowledge of the restrictions on the use of the lot and filed a cross-claim against the Hermosos.

Principally, we must resolve the issue of whether the Court of Appeals erred in holding that the trial court committed grave abuse of discretion when it refused to apply MMC Ordinance No.81-01 to Civil Case No. 64931. But first, we must address petitioner’s allegation that the Court of Appeals "unaccountably failed to address" questions of fact. For basic is the rule that factual issues may not be raised before this Court in a petition for review and this Court is not duty-bound to consider said questions.5 CA-G.R. SP No. 39193 was a special civil action for certiorari, and the appellate court only had to determine if the trial court committed grave abuse of discretion amounting to want or excess of jurisdiction in issuing the writ of preliminary injunction. Thus, unless vital to our determination of the issue at hand, we shall refrain from further consideration of factual questions. Petitioner contends that the appellate court erred in limiting its decision to the cited zoning ordinance. It avers that a contractual right is not automatically discarded once a claim is made that it conflicts with police power. Petitioner submits that the restrictive clauses in the questioned contract is not in conflict with the zoning ordinance. For one, according to petitioner, the MMC Ordinance No. 81-01 did not prohibit the construction of residential buildings. Petitioner argues that even with the zoning ordinance, the seller and buyer of the re-classified lot can voluntarily agree to an exclusive residential use thereof. Hence, petitioner concludes that the Court of Appeals erred in holding that the condition imposing exclusive residential use was effectively nullified by the zoning ordinance. In its turn, private respondent argues that the appellate court correctly ruled that the trial court had acted with grave abuse of discretion in refusing to subject the contract to the MMC Ordinance No. 81-01. He avers that the appellate court properly held the police power superior to the non-impairment of contract clause in the Constitution. He

concludes that the appellate court did not err in dissolving the writ of preliminary injunction issued by the trial court in excess of its jurisdiction. We note that in issuing the disputed writ of preliminary injunction, the trial court observed that the contract of sale was entered into in August 1976, while the zoning ordinance was enacted only in March 1981. The trial court reasoned that since private respondent had failed to show that MMC Ordinance No. 81-01 had retroactive effect, said ordinance should be given prospective application only,6 citing Co vs. Intermediate Appellate Court, 162 SCRA 390 (1988). In general, we agree that laws are to be construed as having only prospective operation. Lex prospicit, non respicit.Equally settled, only laws existing at the time of the execution of a contract are applicable thereto and not later statutes, unless the latter are specifically intended to have retroactive effect.7 A later law which enlarges, abridges, or in any manner changes the intent of the parties to the contract necessarily impairs the contract itself8 and cannot be given retroactive effect without violating the constitutional prohibition against impairment of contracts.9 But, the foregoing principles do admit of certain exceptions. One involves police power. A law enacted in the exercise of police power to regulate or govern certain activities or transactions could be given retroactive effect and may reasonably impair vested rights or contracts. Police power legislation is applicable not only to future contracts, but equally to those already in existence.10 Nonimpairment of contracts or vested rights clauses will have to yield to the superior and legitimate exercise by the State of police power to promote the health, morals, peace, education, good order, safety, and general welfare of the people.11 Moreover, statutes in exercise of valid police power must be read into every contract.12 Noteworthy, in Sangalang vs. Intermediate Appellate Court,13 we already upheld MMC Ordinance No. 81-01 as a legitimate police power measure. The trial court’s reliance on the Co vs. IAC,14 is misplaced. In Co, the disputed area was agricultural and Ordinance No. 81-01 did not specifically provide that "it shall have retroactive effect so as to discontinue all rights previously acquired over lands located within the zone which are neither residential nor light industrial in nature,"15 and stated with respect to agricultural areas covered that "the zoning ordinance should be given prospective operation only."16The area in this case involves not agricultural but urban residential land. Ordinance No. 81-01 retroactively affected the operation of the zoning ordinance in Greenhills by reclassifying certain locations therein as commercial. Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust Co., 94 SCRA 533 (1979), the contractual stipulations annotated on the Torrens Title, on which Ortigas relies, must yield to the ordinance. When that stretch of Ortigas Avenue from Roosevelt Street to Madison Street was reclassified as a commercial zone by the Metropolitan Manila Commission in March 1981, the restrictions in the contract of sale between Ortigas and Hermoso, limiting all construction on the disputed lot to single-family residential buildings, were deemed extinguished by the retroactive operation of the zoning ordinance and could no longer be enforced. While our legal system upholds the sanctity of contract so that a contract is deemed law between the contracting parties,17 nonetheless, stipulations in a contract cannot contravene "law, morals, good customs, public order, or public policy."18 Otherwise such stipulations would be deemed null and void. Respondent court correctly found that the trial court committed in this case a grave abuse of discretion amounting to want of or excess of jurisdiction in refusing to treat Ordinance No. 81-01 as applicable to Civil Case No. 64931. In resolving matters in litigation, judges are not only duty-bound to ascertain the facts and the applicable laws,19 they are also bound by their oath of office to apply the applicable law.20 As a secondary issue, petitioner contends that respondent Mathay III, as a mere lessee of the lot in question, is a total stranger to the deed of sale and is thus barred from questioning the conditions of said deed. Petitioner points out that the owners of the lot voluntarily agreed to the restrictions on the use of the lot and do not question the validity of these restrictions. Petitioner argues that Mathay III as a lessee is merely an agent of the owners, and could not override and rise above the status of his principals. Petitioner submits that he could not have a higher interest than those of the owners, the Hermosos, and thus had no locus standi to file CA-G.R. SP No. 39193 to dissolve the injunctive writ issued by the RTC of Pasig City. For his part, private respondent argues that as the lessee who built the commercial structure, it is he and he alone who stands to be either benefited or injured by the results of the judgment in Civil Case No. 64931. He avers he is the party with real interest in the subject matter of the action, as it would be his business, not the Hermosos’, which would suffer had not the respondent court dissolved the writ of preliminary injunction.

A real party in interest is defined as "the party who stands to be benefited or injured by the judgment or the party entitled to the avails of the suit." "Interest" within the meaning of the rule means material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.21 By real interest is meant a present substantial interest, as distinguished from a mere expectancy or a future, contingent, subordinate, or consequential interest.22 Tested by the foregoing definition, private respondent in this case is clearly a real party in interest.1âwphi1 It is not disputed that he is in possession of the lot pursuant to a valid lease. He is a possessor in the concept of a "holder of the thing" under Article 525 of the Civil Code.23 He was impleaded as a defendant in the amended complaint in Civil Case No. 64931. Further, what petitioner seeks to enjoin is the building by respondent of a commercial structure on the lot. Clearly, it is private respondent’s acts which are in issue, and his interest in said issue cannot be a mere incidental interest. In its amended complaint, petitioner prayed for, among others, judgment "ordering the demolition of all improvements illegally built on the lot in question."24 These show that it is petitioner Mathay III, doing business as "Greenhills Autohaus, Inc.," and not only the Hermosos, who will be adversely affected by the court’s decree. Petitioner also cites the rule that a stranger to a contract has no rights or obligations under it,25 and thus has no standing to challenge its validity.26 But in seeking to enforce the stipulations in the deed of sale, petitioner impleaded private respondent as a defendant. Thus petitioner must recognize that where a plaintiff has impleaded a party as a defendant, he cannot subsequently question the latter’s standing in court.27 WHEREFORE, the instant petition is DENIED. The challenged decision of the Court of Appeals dated March 25, 1996, as well as the assailed resolution of August 13, 1996, in CA-G.R. SP No. 39193 is AFFIRMED. Costs against petitioner. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-21707 March 18, 1967 FELIPE ACAR, ET AL., petitioners, vs. HON. INOCENCIO ROSAL, in his capacity as Executive Judge, Court of First Instance of Negros Oriental, 12th Judicial District, respondent. F. S. Villarin for petitioners. Jose B. Navarro for respondent.

All over the world, Constitutions share one purpose: to protect and enhance the people's interest, as a nation collectively and as persons individually. The Philippine Constitution is no exception. Interpretation of its provisions, therefore, should be done with a view to realizing this fundamental objective. Among the provisions in our Constitution is one both, timely and far-reaching, as it affects the people at large and relates to social justice problems of the day. It is Subsec. 21, Sec. I of Art. III: "Free access to the courts shall not be denied to any person by reason of poverty." It is the one involved in this case. A suit was filed in the Court of First Instance of Negros Oriental on February 21, 1963 by ten persons for their own behalf and that of 9,000 other farm laborers working off and on in sugar cane plantations at the Bais milling district, Negros Oriental, against Compañia General de Tabacos de Filipinas, Central Azucarera de Bais, Compañia Celulosa de Filipinas, Ramon Barata, Aurelio Montinola, Sr., and Miguel Franco. Plaintiffs sought to recover their alleged participations or shares amounting to the aggregate sum of P14,031,836.74, in the sugar, molasses, bagasse and other derivatives based on the provisions of Republic Act 809 (The Sugar Act of 1952), particularly Sections 1 and 9 thereof: SECTION 1. In the absence of written milling agreements between the majority of planters and the millers of sugarcane in any milling district in the Philippines, the unrefined sugar produced in that district from the milling by any sugar central of the sugar-cane of any sugar-cane planter or plantation owner, as well as all by-products and derivatives thereof, shall be divided between them as follows: Sixty per centum for the planter, and forty per centum for the central in any milling district the maximum actual production of which is not more than four hundred thousand piculs: Provided, That the provisions of this section shall not apply to sugar centrals with an actual production of less than one hundred fifty thousand piculs; Sixty-two and one-half per centum for the planter, and thirty-seven and one-half per centum for the central in any milling district the maximum actual production of which exceeds four hundred thousand piculs but does not exceed six hundred thousand piculs; Sixty-five per centum for the planter, and thirty-five per centum for the central in any milling district the maximum actual production of which exceeds six hundred thousand piculs but does not exceed nine hundred thousand piculs; Sixty-seven and one-half per centum for the planter, and thirty-two and one-half per centum for the central in any milling district the maximum actual production of which exceeds nine hundred thousand piculs but does not exceed one million two hundred thousand piculs; Seventy per centum for the planter, and thirty per centum for the central in any milling district the maximum actual production of which exceeds one million two hundred thousand piculs.1äwphï1.ñët By actual production is meant the total production of the mill for the crop year immediately preceding. xxx

The benefits granted to laborers in sugar plantations under this Act and in the Minimum Wage Law shall not in any way be diminished by such labor contracts known as "by the piece," "by the volume," "by the area," or by any other system of "pakyaw," the Secretary of Labor being hereby authorized to issue the necessary orders for the enforcement of this provision." Furthermore, plaintiffs asked thereunder as well as by separate motion, that the aforementioned court authorize them to sue as pauper litigants, under Sec. 22, Rule 3 of the Rules of Court:

BENGZON J.P., J.:

xxx

Sixty per centum of the increased participation for the laborers and forty per centum for the planters. The distribution of the share corresponding to the laborers shall be made under the supervision of the Department of Labor.

xxx

SEC. 9. In addition to the benefits granted by the Minimum Wage Law, the proceeds of any increase in the participation granted the planters under this Act and above their present share shall be divided between the planter and his laborers in the plantation in the following proportion:

SEC. 22. Pauper litigant. — Any court may authorize a litigant to prosecute his action or defense as a pauper upon a proper showing that he has no means to that effect by affidavits, certificate of the corresponding provincial, city or municipal treasurer, or otherwise. Such authority once given shall include an exemption from payment of legal fees and from filing appeal bond, printed record and printed brief. The legal fees shall be a lien to any judgment rendered in the case favorably to the pauper, unless the court otherwise provides. invoking Sec. 1, subsec. (21) of Art. III of the Constitution of the Philippines. They alleged that they had no means, to pay the docket fee of P14,500.00, being laborers dependent solely on their daily wages for livehood and possessed of no properties. And in support of the foregoing, the ten named plaintiffs submitted certificates of the municipal treasurers of their places of residence stating that they have no real property declared in their names in said municipalities. Acting on the petition to litigate in forma pauperis, the Court of First Instance issued an order on May 27, 1963, denying the same upon the ground that the plaintiffs have regular employment and sources of income and, thus, can not be classified as poor or paupers. Plaintiffs sought reconsideration of said order but reconsideration was denied in an order dated June 11, 1963. Assailing said two CFI orders and asserting their alleged right not to be denied free access to the courts by reason of poverty, plaintiffs in said case filed herein, on August 1, 1963, the present special civil action or certiorari and mandamus. Petition to litigate as pauper in the instant case before Us was also filed. And on August 16, 1963, We allowed petitioners herein to litigate in this Court as paupers and required respondent to answer. Respondent's answer was filed on November 2, 1963. After hearing on February 10, 1964 this case was submitted for decision. The sole issue herein is whether petitioners were deprived, by the orders in question, of free access to the courts by reason of poverty. In denying petitioners' motion to litigate as paupers, respondent Judge adopted the definition at "pauper" in Black's Law Dictionary (at p. 1284) as "a person so poor that he must be supported at public expense". And, as afore-stated, he ruled that petitioners are not that poor. Such interpretation, to our mind, does not fit with the purpose of the rules on suits in forma pauperis and the provision of the Constitution, in the Bill of Rights, that: "Free access to the courts shall not be denied to any person by reason of poverty." As applied to statutes or provisions on the right to sue in forma pauperis, the term has a broader meaning. It has thus been recognized that: "An applicant for leave to sue in forma pauperis need not be a pauper; the fact that he is able-bodied and may earn the necessary money is no answer to his statement that he has not sufficient means to prosecute the action or to secure the costs" (14 Am. Jur. 31). It suffices that plaintiff is indigent (Ibid.), the not a public charge. And the difference between "paupers" and "indigent" persons is that the latter are "persons who have no property or source of income sufficient for their support aside from their own labor, though self-supporting when able to work and in employment" (Black's Law Dictionary, p. 913, "Indigent", citing People vs. Schoharie County, 121 NY 345, 24 NE 830). It is therefore in this sense of being indigent that "pauper" is taken when referring to suits in forma pauperis. Black's Law Dictionary in fact defines pauper, thus: "A person so poor that he must be supported at public expense; also a suitor who, on account of poverty, is allowed to sue or defend without being chargeable with costs" (p. 1284, emphasis supplied). It is further argued that the docket fee of P14,500 would very well be shouldered by petitioners since there are around 9,000 of them. It must be remembered, however that the action in question was filed by way of a class suit. And the Rules of Court allowing such procedure state under Sec. 12, Rule 3:

SEC. 12. Class suit. — When the subject matter of the controversy is one of common or general interest to many persons, and the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. But in such case the court shall make sure that the parties actually before it are sufficiently numerous and representative so that all interest concerned are fully protected. Any party in interest shall have a right to intervene in protection of his individual interest. So that in the suit before respondent Judge the ten named petitioners herein are the ones suing, albeit for the benefit of all the others. It follows that the payment of docket fee would be directly charged upon them, not upon the unnamed "9,000 other laborers." And even if the 9,000 other laborers should later bear the payment of said docket fee of P14,500, the same would be spread among them at about P1.60 each. Said cost of pressing their respective average demand of P1.60 each is, to Our mind, a substantial imposition on a seasonal farm laborer earning barely subsistent wages. And as pointed out, this is only the initial fee; subsequent fees and charges would have to be paid. The philosophy underlying the constitutional mandate of free access to the courts notwithstanding poverty, therefore, calls for exemption of herein petitioners from payment of the aforesaid legal fees in their assertion and claim of substantial rights under the Sugar Act of 1952. Returning to the purpose of all Constitutions, as mentioned earlier, We find this course the most sensible, logical and practical construction demanded by the free access clause of the Constitution. For a contrary interpretation could not make said provision the living reality that it is designed to be. As regards the fact that the supporting certifications of indigence refer only to the ten named plaintiffs, suffice it to reiterate that this involves a class suit, where it is not practicable to bring all the other 9,000 laborers before the court. This Court finds the supporting evidence of indigence adequate, showing in petitioners' favor, as plaintiffs in the suit before respondent Judge, the right not to be denied free access to the courts by reason of poverty. Since they were excluded from the use and enjoyment of said right, mandamus lies to enforce it. Appeal was unavailing, since they were not even accorded the status of litigants, for non-payment of docket fee; and perfecting an appeal would have presented the same question of exemption from legal fees, appeal bond and similar requisites. Wherefore, petitioners are declared entitled to litigate as paupers in their class suit before respondent Judge and the latter is hereby ordered to grant their petition to litigate in forma pauperis. No costs. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 122485 February 1, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LARRY MAHINAY Y AMPARADO, accused-appellant. PER CURIAM: A violation of the dignity, purity and privacy of a child who is still innocent and unexposed to the ways of worldly pleasures is a harrowing experience that destroys not only her future but of the youth population as well, who in the teachings of our national hero, are considered the hope of the fatherland. Once again, the Court is confronted by another tragic desecration of human dignity, committed no less upon a child, who at the salad age of a few days past 12 years, has yet to knock on the portals of womanhood, and met her untimely death as a result of the "intrinsically evil act" of non-consensual sex called rape. Burdened with the supreme penalty of death, rape is an ignominious crime for which necessity is neither an excuse nor does there exist any other rational justification other than lust. But those who lust ought not to last. The Court quotes with approval from the People's Brief, the facts narrating the horrible experience and the tragic demise of a young and innocent child in the bloody hands of appellant, as such facts are ably supported by evidence on record: 1* Appellant Larry Mahinay started working as houseboy with Maria Isip on November 20, 1953. His task was to take care of Isip's house which was under construction adjacent to her old residence situated inside a compound at No. 4165 Dian Street, Gen. T. de Leon, Valenzuela, Metro Manila. But he stayed and slept in an apartment also owned by Isip, located 10 meters away from the unfinished house (TSN, September 6, 1995, pp. 5-10). The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in Dian Street. She used to pass by Isip's house on her way to school and play inside the compound yard, catching maya birds together with other children. While they were playing, appellant was always around washing his clothes. Inside the compound yard was a septic tank (TSN, August 22, 1995, pp. 29-31; September 6, 1995, pp.17; 20-22). On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a drinking spree. Around 10 o'clock in the morning, appellant, who was already drunk, left Gregorio Rivera and asked permission from Isip to go out with his friends (TSN, September 6, 1995; pp. 9-11). Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store fronting the compound, saw Ma.Victoria on that same day three to four times catching birds inside Isip's unfinished house around 4 o'clock in the afternoon. The unfinished house was about 8 meters away from Rivera's store (TSN, September 18, 1995, pp. 9-11). On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went to his inlaw's house between 6 to 7 o'clock p.m. to call his office regarding changes on the trip of President Fidel V. Ramos. The house of his in-laws was near the house of Isip. On his way to his in-law's house, Sgt. Suni met appellant along Dian Street. That same evening, between 8 to 9 o'clock p.m., he saw Ma. Victoria standing in front of the gate of the unfinished house (TSN, September 27, 1995, pp. 3-7; 14-17). Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's store to buy lugaw. Norgina Rivera informed appellant that there was none left of it. She notice that appellant appeared to be uneasy and in deep thought. His hair was disarrayed; he was drunk and was walking in a dazed manner. She asked why he looked so worried but he did not answer. Then he left and walked back to the compound (TSN, September 18, 1995, pp. 4-8; 12-14). Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was missing. She last saw her daughter wearing a pair of white shorts, brown belt, a yellow hair ribbon, printed blue blouse, dirty white panty, white lady sando and blue rubber slippers (TSN, August 23, 1995, pp. 22, 33). Isip testified that appellant failed to show up for supper that night. On the following day, June 26, 1995, at 2 o'clock in the morning, appellant boarded a passenger jeepney

driven by Fernando Trinidad at the talipapa. Appellant alighted at the top of the bridge of the North Expressway and had thereafter disappeared (TSN, September 20, 1995, pp. 4-9; September 27, l995; pp. 14-17). That same morning, around 7:30, a certain Boy found the dead body of Ma. Victoria inside the septic tank. Boy immediately reported what he saw to the victim's parents, Eduardo and Elvira Chan (TSN, September 6, 1995, p. 13). With the help of the Valenzuela Police, the lifeless body of Ma. Victoria was retrieved from the septic tank. She was wearing a printed blouse without underwear. Her face bore bruises. Results of the autopsy revealed the following findings: Cyanosis, lips and nailbeds, Contusions, suprapubic area, 6.0 x 3.0 cm., thigh right, Anterior aspect, middle third, 4.5 x 3.0 cm. Contused-abrasions on the forehead, 5.0 x 5.0 cm. angle of the left eye, lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5 cm. intraclavicular area, left, posterior aspect, 4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular area, left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0 cm. arm, left, posterior aspect, middle third, 11.00 x 4.0 cm elbows, right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm, forearms, left, posterior aspect, lower rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right anterolateral aspect, upper 33rd , 12.0 x 10.0 cm. right anterior aspect, lower 3rd 5.0 x 2.0 cm. and left antero-lower 3rd, 5.5 x 2.5 cm. knee, right, lateral aspect, 1.5 X 1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal aspect 2.2 x 1.0 cm. Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm. Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial, subpleural petechial hemorrhages. Hemorrhage, subdural, left fronto-parietal area. Tracheo-bronchial tree, congested. Other visceral organs, congested. Stomach, contain 1/4 rice and other food particles. CAUSE OF DEATH - Asphyxia by Manual Strangulation; Traumatic Head Injury, Contributory. REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00 o'clock position corresponding to the face of a watch edges congested with blood clots. (TSN, August 18, 1995; p. 4; Record, p. 126). Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro were informed by Isip that her houseboy, appellant Larry Mahinay, was missing. According to her, it was unlikely for appellant to just disappear from the apartment since whenever he would go out, he would normally return on the same day or early morning of the following day (TSN, September 6, 1995, pp. 6-11-27). SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of appellant was working in a pancit factory at Barangay Reparo, Caloocan City. They proceeded to said place. The owner of the factory confirmed to them that appellant used to work at the factory but she did not know his present whereabouts. Appellant's townmate, on the other hand, informed them that appellant could possibly be found on 8th Street, Grace Park, Caloocan City (TSN, August 14, 1995, pp. 8-9). The policemen returned to the scene of the crime. At the second floor of the house under construction, they retrieved from one of the rooms a pair of dirty white short pants, a brown belt and a yellow hair ribbon which was identified by Elvira Chan to belong to her daughter, Ma. Victoria. They also found inside another room a pair of blue slippers which Isip identified as that of appellant. Also found in the yard, three armslength away from the septic tank were an underwear, a leather wallet, a pair of

dirty long pants and a pliers positively identified by Isip as appellant's belongings. These items were brought to the police station (TSN, August 14, 1995, pp. 10-13; August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25). A police report was subsequently prepared including a referral slip addressed to the office of the Valenzuela Prosecutor. The next day, SPO1 Virgilio Villano retrieved the victim's underwear from the septic tank (TSN, August 23, 1995, pp. 3-8; 14-17). After a series of follow-up operations, appellant was finally arrested in Barangay Obario Matala, Ibaan, Batangas. He was brought to the Valenzuela Police Station. On July 7, 1995, with the assistance of Atty. Restituto Viernes, appellant executed an extra-judicial confession wherein he narrated in detail how he raped and killed the victim. Also, when appellant came face to face with the victim's mother and aunt, he confided to them that he was not alone in raping and killing the victim. He pointed to Zaldy and Boyet as his co-conspirators (TSN, August 14,1995, pp. 13-21). Thus, on July 10, 1995, appellant was charged with rape with homicide in an Information which reads:2 That on or about the 26th day of June 1995 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court the above-named accused, by means of force and intimidation employed upon the person of MARIA VICTORIA CHAN y CABALLERO, age 12 years old, did then and there wilfully, unlawfully and feloniously lie with and have sexual intercourse with said MARIA VICTORIA CHAN Y CABALLERO against her will and without her consent; that on the occasion of said sexual assault, the above-named accused, choke and strangle said MARIA VICTORIA CHAN Y CABALLERO as a result of which, said victim died. Contrary to law.3 to which he pleaded not guilty. After trial, the lower court rendered a decision convicting appellant of the crime charged, sentenced him to suffer the penalty of death and to pay a total of P73,000.00 to the victim's heirs. The dispositive portion of the trial court's decision states:

On his way home, appellant passed by Norgina Rivera's store to buy lugaw. Norgina Rivera informed him that there was none left of it. He left the store and proceeded to Isip's apartment. But because it was already closed, he decided to sleep at the second floor of Isip's unfinished house. Around 10 o'clock p.m., Zaldy and Boyet arrived carrying a cadaver. The two placed the body inside the room where appellant was sleeping. As appellant stood up, Zaldy pointed to him a knife. Zaldy and Boyet directed him to rape the dead body of the child or they would kill him. He, however, refused to follow. Then, he was asked by Zaldy and Boyet to assist them in bringing the dead body downstairs. He obliged and helped dump the body into the septic tank. Thereupon, Zaldy and Boyet warned him that should they ever see him again, they would kill him. At 4 o'clock the following morning, he left the compound and proceeded first to Navotas and later to Batangas (TSN, October 16, 1995, pp. 4-13). Subsequently, appellant was apprehended by the police officers in Ibaan, Batangas. The police officers allegedly brought him to a big house somewhere in Manila. There, appellant heard the police officer's plan to salvage him if he would not admit that he was the one who raped and killed the victim. Scared, he executed an extra-judicial confession. He claimed that he was assisted by Atty. Restituto Viernes only when he was forced to sign the extra-judicial confession (TSN, October 16, 1995, pp. 9-11).6 This being a death penalty case, the Court exercises the greatest circumspection in the review thereof since "there can be no stake higher and no penalty more severe . . . than the termination of a human life." 7 For life, once taken is like virginity, which once defiled can never be restored. In order therefore, that appellant's guilty mind be satisfied, the Court states the reasons why, as the records are not shy, for him to verify. The proven circumstances of this case when juxtaposed with appellant's proffered excuse are sufficient to sustain his conviction beyond reasonable doubt, notwithstanding the absence of any direct evidence relative to the commission of the crime for which he was prosecuted. Absence of direct proof does not necessarily absolve him from any liability because under the Rules on evidence8 and pursuant to settled jurisprudence, 9 conviction may be had on circumstantial evidence provided that the following requisites concur: 1. there is more than one circumstance;

WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond reasonable doubt of the crime charged, he is hereby sentenced to death by electricution (sic). He is likewise condemned to indemnify the heirs of the victim, Ma. Victoria Chan the amount of P50,000.00 and to pay the further sum of P23,000.00 for the funeral, burial and wake of the victim. Let the complete records of the case be immediately forwarded to the Honorable Supreme Court for the automatic review in accordance to Article 47 of the Revised Penal Code as amended by Section 22 of Republic Act No. 7659. SO ORDERED. 4 Upon automatic review by the Court en banc pursuant to Article 47 of the Revised Penal Code. (RPC), as amended,5 appellant insists that the circumstantial evidence presented by the prosecution against him is insufficient to prove his guilt beyond reasonable doubt. In his testimony summarized by the trial court, appellant offered his version of what transpired as follows: (T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T. de Leon, Valenzuela, Metro Manila, he joined Gregorio Rivera and a certain Totoy in a drinking spree. Gregorio Rivera is the brother of Maria Isip, appellant's employer. After consuming three cases of red horse beer, he was summoned by Isip to clean the jeepney. He finished cleaning the jeepney at 12 o'clock noon. Then he had lunch and took a bath. Later, he asked permission from Isip to go out with his friends to see a movie. He also asked for a cash advance of P300.00 (TSN, October 16, 1995, pp. 4-5-5). At 2 o'clock in the afternoon, appellant, instead of going out with his friend, opted to rejoin Gregorio Rivera and Totoy for another drinking session. They consumed one case of red horse beer. Around 6 o'clock p.m., Zaldy, a co-worker, fetched him at Gregorio Rivera's house. They went to Zaldy's house and bought a bottle of gin. They finished drinking gin around 8 o'clock p.m. After consuming the bottle of gin, they went out and bought another bottle of gin from a nearby store. It was already 9 o'clock in the evening. While they were at the store, appellant and Zaldy met Boyet. After giving the bottle of gin to Zaldy and Boyet, appellant left (TSN, October 16, 1995, pp. 67).

2. the facts from which the inferences are derived are proven; and 3. the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Simply put, for circumstantial evidence to be sufficient to support a conviction, all circumstances must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent and with every other rational hypothesis except that of guilt.10 Facts and circumstances consistent with guilt and inconsistent with innocence, constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court.11 In the case at bench, the trial court gave credence to several circumstantial evidence, which upon thorough review of the Court is more than enough to prove appellant's guilt beyond the shadow of reasonable doubt. These circumstantial evidence are as follows: FIRST — Prosecution witness Norgina Rivera, sister-in-law of Maria Isip, owner of the unfinished big house where the crime happened and the septic tank where the body of Maria Victoria Chan was found in the morning of June 26, 1995 is located, categorically testified that at about 9:00 in the evening on June 25, 1995, accused Larry Mahinay was in her store located in front portion of the compound of her sister-in-law Maria Isip where the unfinished big house is situated buying rice noodle (lugaw). That she noticed the accused's hair was disarranged, drunk and walking in sigsagging manner. That the accused appeared uneasy and seems to be thinking deeply. That the accused did not reply to her queries why he looked worried but went inside the compound. SECOND — Prosecution witness Sgt. Roberto C. Suni, categorically testified that on June 25, 1995 between 6:00 and 7:00 in the evening, on his way to his in-laws house, he met accused Larry Mahinay walking on the road leading to his in-law's residence which is about 50 to 75 meters away to the unfinished big house of Maria Isip. That he also saw victim Maria Victoria Chan standing at the gate of the unfinished big house of Maria Isip between 8:00 and 9:00 in the same evening.

THIRD — Prosecution witness Maria Isip, owner of the unfinished big house where victim's body was found inside the septic tank, testified that accused Larry Mahinay is her houseboy since November 20, 1993. That in the morning of June 25, 1995, a Sunday, Larry Mahinay asked permission from her to leave. That after finishing some work she asked him to do accused Larry Mahinay left. That it is customary on the part of Larry Mahinay to return in the afternoon of the same day or sometimes in the next morning. That accused Larry Mahinay did not return until he was arrested in Batangas on July 7, 1995. FOURTH — Prosecution witness Fernando Trinidad, a passenger jeepney driver plying the route Karuhatan-Ugong and vice versa which include Dian St., Gen. T. de Leon, Valenzuela, Metro Manila, pinpointed the accused Larry Mahinay as one of the passengers who boarded his passenger jeepney on June 26, 1995 at 2:00 early morning and alighted on top of the overpass of the North Expressway. FIFTH — Personal belongings of the victim was found in the unfinished big house of Maria Isip where accused Larry Mahinay slept on the night of the incident. This is a clear indication that the victim was raped and killed in the said premises. There is no showing that the testimonies of the prosecution witnesses (sic) fabricated or there was any reason for them to testify falsely against the accused. The absence of any evidence as to the existence of improper motive sustain the conclusion that no such improper motive exists and that the testimonies of the witnesses, therefore, should be given full faith and credit. (People vs. Retubado, 58585 January 20, 1988 162 SCRA 276,. 284; People vs. Ali L-18512 October 30, 1969, 29 SCRA 756). SIXTH — Accused Larry Mahinay during the custodial investigation and after having been informed of his constitutional rights with the assistance of Atty. Restituto Viernes of the Public Attorney's Office voluntarily gave his statement admitting the commission of the crime. Said confession of accused Larry Mahinay given with the assistance of Atty. Restituto Viernes is believed to have been freely and voluntarily given. That accused did not complain to the proper authorities of any maltreatment on his person (People vs. delos Santos L-3398 May 29, 1984;150 SCRA 311). He did not even informed the Inquest Prosecutor when he sworn to the truth of his statement on July 8, 1995 that he was forced, coersed or was promised of reward or leniency. That his confession abound with details know only to him. The Court noted that a lawyer from the Public Attorneys Office Atty. Restituto Viernes and as testified by said Atty. Viernes he informed and explained to the accused his constitutional rights and was present all throughout the giving of the testimony. That he signed the statement given by the accused. Lawyer from the Public Attorneys Office is expected to be watchful and vigilant to notice any irregularity in the manner of the investigation and the physical conditions of the accused. The post mortem findings shows that the cause of death Asphyxia by manual strangulation; Traumatic Head injury Contributory substantiate. Consistent with the testimony of the accused that he pushed the victim and the latter's head hit the table and the victim lost consciousness.

Furthermore, if the child is already dead when brought by Zaldy and Boyet in the room at the second floor of the unfinished house where accused Larry Mahinay was sleeping, why will Boyet and Zaldy still brought the cadaver upstairs only to be disposed/dump later in the septic tank located in the ground floor. Boyet and Zaldy can easily disposed and dumped the body in the septic tank by themselves. It is likewise strange that the dead body of the child was taken to the room where accused Larry Mahinay was sleeping only to force the latter to have sex with the dead body of the child. We have no test to the truth of human testimony except it's conformity to aver knowledge observation and experience. Whatever is repugnant to these belongs to the miraculous. (People vs. Santos L-385 Nov. 16, 1979) EIGHT — If the accused did not commit the crime and was only forced to disposed/dumpted the body of the victim in the septic tank, he could have apprise Col. Maganto, a high ranking police officer or the lady reporter who interviewed him. His failure and omission to reveal the same is unnatural. An innocent person will at once naturally and emphatically repel an accusation of crime as a matter of preservation and self-defense and as a precaution against prejudicing himself. A person's silence therefore, particularly when it is persistent will justify an inference that he is not innocent. (People vs. Pilones, L-32754-5 July 21, 1978). NINTH — The circumstance of flight of the accused strongly indicate his consciousness of guilt. He left the crime scene on the early morning after the incident and did not return until he was arrested in Batangas on July 7, 1995. 12 Guided by the three principles in the review of rape cases, to wit:13 1). An accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; 2). In view of the intrinsic nature of the crime of rape, where only two persons are usually involved, the testimony of the complainant is scrutinized with extreme caution; and 3). The evidence of the prosecution stands or falls on its own merits and cannot be allowed to draw strength from the weakness of the defense. the foregoing circumstantial evidence clearly establishes the felony of rape with homicide defined and penalized under Section 335 of the Revised Penal Code, as amended by Section 11, R.A. 7659, which provides:

Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos tinulak ko siya, tapos tumama iyong ulo niya sa mesa. Ayon na, nakatulog siya tapos ni-rape ko na siya.

When and how rape is committed - Rape is committed by having carnal knowledge of a woman under any of the following circumstances.

There is no clear proof of maltreatment and/or tortured in giving the statement. There were no medical certificate submitted by the accused to sustain his claim that he was mauled by the police officers.

1.) By using force or intimidation;

There being no evidence presented to show that said confession were obtained as a result of violence, torture, maltreatment, intimidation, threat or promise of reward or leniency nor that the investigating officer could have been motivated to concoct facts narrated in said affidavit; the confession of the accused is held to be true, correct and freely or voluntarily given. (People v. Tuazon 6 SCRA 249; People v. Tiongson 6 SCRA 431, People v. Baluran 52 SCRA 71, People v. Pingol 35 SCRA 73.)

3.) When the woman is under twelve years of age or is demented.

SEVENTH — Accused Larry Mahinay testified in open Court that he was notable to enter the apartment where he is sleeping because it was already closed and he proceeded to the second floor of the unfinished house and slept. He said while sleeping Zaldy and Boyet arrived carrying the cadaver of the victim and dumped it inside his room. That at the point of a knife, the two ordered him to have sex with the dead body but he refused. That the two asked him to assist them in dumping the dead body of the victim in the septic tank downstairs. (Tsn pp. 8-9 October 16, 1995). This is unbelievable and unnatural. Accused Larry Mahinay is staying in the apartment and not in the unfinished house. That he slept in the said unfinished house only that night of June 25, 1995 because the apartment where he was staying was already closed. The Court is at a loss how would Zaldy and Boyet knew he (Larry Mahinay) was in the second floor of the unfinished house.

2.) When the woman is deprived of reason or otherwise unconscious: and

The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, a homicide is committed the penalty shall be death.

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1.) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. 2.) When the victim is under the custody of the police or military authorities. 3.) When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4.) When the victim is a religious or a child below seven (7) years old. 5.) When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6.) When committed by any member of the Armed Forces of the Philippines or Philippine National Police or any law enforcement agency 7.) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation. 14 At the time of the commission of this heinous act, rape was still considered a crime against chastity,15 although under the Anti-Rape Law of 1997 (R.A. No. 8353), rape has since been re-classified as a crime against persons under Articles 266-A and 266-B, and thus, may be prosecuted even without a complaint filed by the offended party. The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress with a woman by force and without consent. 16 (Under the new law, rape may be committed even by a woman and the victim may even be a man.) 17 If the woman is under 12 years of age, proof of force and consent becomes immaterial18 not only because force is not an element of statutory rape, 19 but the absence of a free consent is presumed when the woman is below such age. Conviction will therefore lie, provided sexual intercourse is proven. But if the woman is 12 years of age or over at the time she was violated, as in this case, not only the first element of sexual intercourse must be proven but also the other element that the perpetrator's evil acts with the offended party was done through force, violence, intimidation or threat needs to be established. Both elements are present in this case. Based on the evidence on record, sexual intercourse with the victim was adequately proven. This is shown from the testimony of the medical doctor who conducted post mortem examination on the child's body: Q: And after that what other parts or the victim did you examine? A: Then I examined the genitalia of the victim. Q: And what did you find out after you examined the genitalia of the victim? A: The hymen was tall-thick with complete laceration at 4:00 o'clock and 8:00 o'clock position and that the edges were congested. Q: Now, what might have caused the laceration? A: Under normal circumstances this might have (sic) caused by a penetration of an organ. Q: So, the laceration was caused by the penetration of a male organ? A: Adult male organ, sir. Q: You are very sure of that, Mr. Witness? A: I am very sure of that.20 Besides, as may be gleaned from his extrajudicial confession, appellant himself admitted that he had sexual congress with the unconscious child. 15. T: Ano ang nangyari ng mga sandali o oras na iyon? S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung malaking bahay na ginagawa, tapos dumating yung batang babae. Pag-pasok niya sa kuwarto hinawakan ko siya sa kamay tapos tinulak ko siya. Tapos tumama yung ulo niya sa mesa. Ayon na, nakakatulog na siya tapos ni rape ko na siya. 16. T: Ano ang suot nung batang babae na sinasabi mo? S: Itong short na ito, (pointing to a dirty white short placed atop this investigator's table. Subject evidence were part of evidences recovered at the crime scene). 17. T: Bakit mo naman ni rape yung batang babae? S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko. 18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing? S: Red Horse po at saka GIN. 19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung batang babae?.

S: Sa kuwarto ko po sa itaas. 20. T: Kailan ito at anong oras nangyari? S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na matandaan kung anong petsa, basta araw ng Linggo. 21. T: Saan lugar ito nangyari? S: Sa Dian, Gen. T. de Leon, Valenzuela, M.M. 22. T: Alam mo ba ang pangalan ng batang babae na ni rape mo? S: Hindi ko po alam. 23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang babae na iyong ni rape at pinatay ay si MA. VICTORIA CHAN? Matatandaan mo ha ito? S: Oho. 24. T: Nung ma-rape mo, nakaraos ka ba? S: Naka-isa po. 25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng "NAKARAOS", maaari bang ipaliwanag mo ito? S: Nilabasan po ako ng tamod. 26 T: Nung nakaraos ka, nasaan parte na katawan ng batang babae yung iyong ari? S: Nakapasok po doon sa ari nung babae. 27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang sumunod mong ginawa? S: Natulak ko siya sa terrace. 28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa terrace? S: Inilagay ko po sa poso-negra. 29. T: Saan makikita yung poso negra na sinasabi mo? S: Doon din sa malaking bahay ni ATE MARIA. 30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa poso-negra? S: Doon ko lang po inilagay. 31. T: Bakit nga doon mo inilagay siya? S: Natatakot po ako. 32. T: Kanino ka natatakot? S: Natatakot po ako sa ginawa kong masama, natatakot ako sa mga pulis. 33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa poso-negra? S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko na siya sa poso-negra. 34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama? S: Nag-iisa lang po ako. 35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA CHAN, buhay pa ba siya o patay na? S: Buhay pa po. 36. T: Papaano mo siya pinatay? S: Tinulak ko nga po siya sa terrace.21 In proving sexual intercourse, it is not full or deep penetration of the victim's vagina; rather the slightest penetration of the male organ into the female sex organ is enough to consummate the sexual intercourse. 22 The mere touching by the male's organ or instrument of sex of the labia of the pudendum of the woman's private parts is sufficient to consummate rape. From the wounds, contusions and abrasions suffered by the victim, force was indeed employed upon her to satisfy carnal lust. Moreover, from appellant's own account, he pushed the victim causing the latter to hit her head on the table and fell unconscious. It was at that instance that he ravished her and satisfied his salacious and prurient desires. Considering that the victim, at the time of her penile invasion, was unconscious, it could safely be concluded that she had not given free and voluntary consent to her defilement, whether before or during the sexual act. Another thing that militates against appellant is his extra judicial confession, which he, however, claims was executed in violation of his constitutional right to counsel. But his contention is belied by the records as well as the testimony of the lawyer who assisted, warned and explained to him his constitutionally guaranteed pre-interrogatory and custodial rights. As testified to by the assisting lawyer: Q — Will you please inform the Court what was that call about? A — We went to the station, police investigation together with Atty. Froilan Zapanta and we were told by Police Officer Alabastro that one Larry Mahinay would like to confess of the crime of, I think, rape with homicide. Q — And upon reaching the investigation room of Valenzuela PNP who were the other person present? A — Police Officer Alabastro, sir, Police Officer Nacis and other investigator inside the investigation room and the parents of the child who was allegedly raped. Q — And when you reached the investigation room do you notice whether the accused already there? A — The accused was already there. Q — Was he alone? A — He was alone, sir. Q — So, when you were already infront of SPO1 Arnold Alabastro and the other PNP Officers, what did they tell you, if any? A — They told us together with Atty. Zapanta that this Larry Mahinay would like to confess of the crime charged, sir. Q — By the way, who was that Atty. Zapanta? A — Our immediate Superior of the Public Attorney's Office.

Q — Was he also present at the start of the question and answer period to the accused? A — No more, sir, he already went to our office. I was left alone. Q — But he saw the accused, Larry Mahinay? A — Yes, sir. Q — Now, when Atty. Zapanta left at what time did the question and answer period start? A — If I am not mistaken at around 4:05 of July 7, 1995 in the afternoon, sir. Q — And when this question and answer period started, what was the first thing that you did as assisting lawyer to the accused? A — First, I tried to explain to him his right, sir, under the constitution. Q — What are those right? A — That he has the right to remain silent. That he has the right of a counsel of his own choice and that if he has no counsel a lawyer will be appointed to him and that he has the right to refuse to answer any question that would incriminate him. Q — Now, after enumerating these constitutional rights of accused Larry Mahinay, do you recall whether this constitutional right enumerated by you were reduced in writing? A — Yes, sir, and it was also explained to him one by one by Police Officer Alabastro. Q — I show to you this constitutional right which you said were reduced into writing, will you be able to recognize the same? A — Yes, sir. Q — Will you please go over this and tell the Court whether that is the same document you mentioned? A — Yes, sir, these were the said rights reduced into writing. ATTY. PRINCIPE: May we request, Your Honor, that this document be marked as our Exhibit A. proper. Q — Do you recall after reducing into writing this constitutional right of the accused whether you asked him to sign to acknowledge or to conform? A — I was the one who asked him, sir. It was Police Officer Alabastro. Q — But you were present? A — I was then present when he signed. Q — There is a signature in this constitutional right after the enumeration, before and after there are two (2) signatures, will you please recognize the two (2) signatures? A — These were the same signatures signed in my presence, sir. Q — The signature of whom? A — The signature of Larry Mahinay, sir. ATTY. PRINCIPE: May we request, Your Honor, that the two (2) signatures identified by my compañero be encircled and marked as Exhibit A-1 and A-2. Q — After you said that you apprised the accused of his constitutional right explaining to him in Filipino, in local dialect, what was the respond of the accused? A — Larry Mahinay said that we will proceed with his statement. Q — What was the reply? A — He said "Opo". Q — Did you ask him of his educational attainment? A — It was the Police Officer who asked him. Q — In your presence? A — In my presence, sir. Q — And when he said or when he replied "Opo" so the question started? A — Yes, sir. Q — I noticed in this Exhibit A that there is also a waiver of rights, were you present also when he signed this waiver? A — Yes, sir, I was also present. Q — Did you explain to him the meaning of this waiver? A — I had also explained to him, sir. Q — In Filipino? A — In Tagalog, sir. Q — And there is also a signature after the waiver in Filipino over the typewritten name Larry Mahinay, "Nagsasalaysay", whose signature is that? A — This is also signed in my presence. Q — Why are you sure that this is his signature? A — He signed in my presence, sir. Q — And below immediately are the two (2) signatures. The first one is when Larry Mahinay subscribed and sworn to, there is a signature here, do you recognize this signature? A — This is my signature, sir. Q — And immediately after your first signature is a Certification that you have personally examined the accused Larry Mahinay and testified that he voluntary executed the Extra Judicial Confession, do you recognize the signature? A — This is also my signature, sir.23 (emphasis supplied). Appellant's defense that two other persons brought to him the dead body of the victim and forced him to rape the cadaver is too unbelievable. In the words of ViceChancellor Van Fleet of New Jersey, 24

Evidence to be believed must not only proceed from the mouth of a credible witness, but must be credible in itself - such as the common experience and observation of mankind can approve as probable under the circumstances. We have no test or the truth of human testimony, except its conformity to our knowledge, observation and experience. Whatever is repugnant to these belongs to the miraculous, and is outside of judicial cognizance. Ultimately, all the foregoing boils down to the issue of credibility of witnesses. Settled is the rule that the findings of facts and assessment of credibility of witnesses is a matter best left to the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses' deportment on the stand while testifying, which opportunity is denied to the appellate courts.25 In this case, the trial court's findings, conclusions and evaluation of the testimony of witnesses is received on appeal with the highest respect, 26 the same being supported by substantial evidence on record. There was no showing that the court a quo had overlooked or disregarded relevant facts and circumstances which when considered would have affected the outcome of this case27 or justify a departure from the assessments and findings of the court below. The absence of any improper or illmotive on the part of the principal witnesses for the prosecution all the more strengthens the conclusion that no such motive exists. 28 Neither was any wrong motive attributed to the police officers who testified against appellant. Coming now to the penalty, the sentence imposed by the trial court is correct. Under Article 335 of the Revised Penal Code (RPC), as amended by R.A. 7659 "when by reason or on occasion of the rape, a homicide is committed, the penalty shall be death." This special complex crime is treated by law in the same degree as qualified rape - that is, when any of the 7 (now 10) "attendant circumstances" enumerated in the law is alleged and proven, in which instances, the penalty is death. In cases where any of those circumstances is proven though not alleged, the penalty cannot be death except if the circumstance proven can be properly appreciated as an aggravating circumstance under Articles 14 and 15 of the RPC which will affect the imposition of the proper penalty in accordance with Article 53 of the RPC However, if any of those circumstances proven but not alleged cannot be considered as an aggravating circumstance under Articles 14 and 15, the same cannot affect the imposition of the penalty because Article 63 of the RPC in mentioning aggravating circumstances refers to those defined in Articles 14 and 15. Under R.A. No. 8353, if any of the 10 circumstances is alleged in the information/complaint, it may be treated as a qualifying circumstance. But if it is not so alleged, it may be considered as an aggravating circumstance, in which case the only penalty is death - subject to the usual proof of such circumstance in either case. Death being a single indivisible penalty and the only penalty prescribed by law for the crime of "rape with homicide", the court has no option but to apply the same "regardless of any mitigating or aggravating circumstance that may have attended the commission of the crime"29 in accordance with Article 63 of the RPC, as amended. 30 This case of rape with homicide carries with it penalty of death which is mandatorily imposed by law within the import of Article 47 of the RPC, as amended, which provides: The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except when the guilty person is below eighteen (18) years of age at the time of the commission of the crime or is more than seventy years of age or when upon appeal or automatic review of the case by the Supreme Court, the required majority vote is not obtained for the imposition of the death penalty, in which cases the penalty shall be reclusion perpetua. (emphasis supplied). In an apparent but futile attempt to escape the imposition of the death penalty, appellant tried to alter his date of birth to show that he was only 17 years and a few months old at the time he committed the rape and thus, covered by the proscription on the imposition of death if the guilty person is below eighteen (18) years at the time of the commission of the crime.31 Again, the record rebuffs appellant on this point considering that he was proven to be already more than 20 years of age when he did the heinous act. Pursuant to current case law, a victim of simple rape is entitled to a civil indemnity of fifty thousand pesos (P50,000.00) but if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by present amended law, the civil indemnity for the victim shall be not less than seventyfive thousand pesos (P75,000.00).32 In addition to such indemnity, she can also recover moral damages pursuant to Article 2219 of the Civil Code 33 in such amount as the court deems just, without the necessity for pleading or proof of the basis

thereof. 34 Civil indemnity is different from the award of moral and exemplary damages. 35 The requirement of proof of mental and physical suffering provided in Article 2217 of the Civil Code is dispensed with because it is "recognized that the victim's injury is inherently concomitant with and necessarily resulting from the odious crime of rape to warrant per se the award of moral damages". 36 Thus, it was held that a conviction for rape carries with it the award of moral damages to the victim without need for pleading or proof of the basis thereof. 37 Exemplary damages can also be awarded if the commission of the crime was attended by one or more aggravating circumstances pursuant to Article 2230 of the Civil Code38 after proof that the offended party is entitled to moral, temperate and compensatory damages. 39 Under the circumstances of this case, appellant is liable to the victim's heirs for the amount of P75,000.00 as civil indemnity and P50,000.00 as moral damages. Lastly, considering the heavy penalty of death and in order to ensure that the evidence against an accused were obtained through lawful means, the Court, as guardian of the rights of the people lays down the procedure, guidelines and duties which the arresting, detaining, inviting, or investigating officer or his companions must do and observe at the time of making an arrest and again at and during the time of the custodial interrogation 40 in accordance with the Constitution, jurisprudence and Republic Act No. 7438: 41 It is high-time to educate our law-enforcement agencies who neglect either by ignorance or indifference the so-called Miranda rights which had become insufficient and which the Court must update in the light of new legal developments: 1. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; Every other warnings, information or communication must be in a language known to and understood by said person; 2. He must be warned that he has a right to remain silent and that anystatement he makes may be used as evidence against him; 3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; 4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf; 5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made; 6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means - telephone, radio, letter or messenger - with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished; 7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same; 8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak; 9. That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must ceased if it has already begun; 10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements;

11. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence. Four members of the Court — although maintaining their adherence to the separate opinions expressed in People v. Echegaray 42 that R.A. No. 7659, insofar as it prescribes the death penalty, is unconstitutional — nevertheless submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should accordingly be imposed. WHEREFORE, the conviction of appellant is hereby AFFIRMED except for the award of civil indemnity for the heinous rape which is INCREASED to P75,000.00, PLUS P50,000.00 moral damages. In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Martinez, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., concur.

SECOND DIVISION G.R. No. 131036 June 20, 2001 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DONATO DEL ROSARIO, defendant-appellant.

Three days after the incident, the police received information from the live-in partner of Ilagan, that a certain Donato del Rosario was seen standing at the back of the house of Paragua before the crime was committed and had disappeared since then. Del Rosario’s mother and common-law wife were questioned about the whereabouts of the accused. SPO1 Fernandez told the mother of del Rosario that her son was suspected of committing the crimes in Balic-Balic.

BUENA, J.: This is an appeal from the decision of the Regional Trial Court at Olongapo City, Branch 72 in Criminal Case No. 838-92, entitled "People of the Philippines versus Donato del Rosario," convicting the accused of the crime of robbery with homicide and sentencing him to reclusion perpetua. On November 20, 1992, an information was filed against Donato del Rosario charging him of robbery with homicide committed as follows: "That on or about the twenty-sixth (26th) of September, 1992, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain and without the knowledge and consent of the owner, and by means of violence and intimidation, did then and there wilfully, unlawfully and feloniously take, steal and carry away one (1) pc. of 22K grams of gold bracelet worth P3,500.00, one (1) pc. of diamond ring with letter ‘E’ worth P3,200.00, one (1) pc. of wedding ring worth P800.00, two (2) pairs of gold earring worth P1,600.00 and cash money in the amount of P1,600.00, all in the total amount of Ten Thousand Seven Hundred Pesos (P10,700.00), Philippine Currency, belonging to Emelita Paragua, and on the occasion of said robbery and for the purpose of enabling him to take, steal and carry away the above-mentioned items, the herein accused, did then and there wilfully, unlawfully, feloniously and taking advantage of superior strength and with intent to kill treacherously attack, assault, hit her with a hard object on the head and then strangle and tie the neck of Raquel Lopez (niece of Emelita Paragua) with a Cat-V wire to prevent her from breathing and making an outcry, thereby inflicting upon said Raquel Lopez asphyxia injuries which directly caused her death shortly thereafter."1 Upon arraignment on February 3, 1993, accused Donato del Rosario, assisted by counsel, pleaded not guilty to the crime charged. The Regional Trial Court thereafter proceeded with the trial.

On October 2, 1992, the Olongapo City police received a call from the Subic police that Donato del Rosario surrendered to police officer Fernando Morales, the brother-in-law of his common-law wife, Ruby Tan. Thereafter, SPO1 Fernandez, together with Inspector Leonardo Esteban and PO3 Laurea, proceeded to Subic to fetch Donato del Rosario. Del Rosario, even without being asked, told them that he really surrendered to Morales because he was being bothered by his conscience and that he was very willing to accompany them to recover the stolen items. He also volunteered the information as to where he sold the jewelries that he took from the house of Emelita Paragua. Thereafter the policemen from Olongapo and Donato del Rosario proceeded to the places mentioned by the latter – Barrio Barretto, Olongapo City, where the "Lovely Kahael Pawnshop" was located, and Barangay Magsaysay, Iba, Zambales. Del Rosario was not even handcuffed at the time. At the Lovely Kahael pawnshop del Rosario pointed out the jewelry that he had pawned. He also signed the pawnshop ticket in order that a wedding band and a diamond ring with the letter "E" could be redeemed. At the pawnshop he was identified by Florencio Gamboa, the OIC/appraiser therein. Afterwards they proceeded to Magsaysay, Iba, Zambales to the shop of Rogelio Adriano. They were not able to immediately recover a bracelet and a 7-day ring that were sold to Adriano, a watch repairer and a buyer/seller of second hand jewelry, as he had given them to his son for safekeeping. However, Adriano assured the police that he is going to voluntarily surrender the jewelry because he learned of the girl who was found dead and of the robbery. His son, Rogelio Adriano, Jr., returned the jewelry to the police some days later. Both Adrianos identified del Rosario as the person who sold them the jewelry. After the jewelry was recovered, the police called Emelita Paragua who positively identified the jewels as hers.

Culled from the records are the following: On September 26, 1992, at about 8:10 in the morning, Emelita Paragua and a companion, a Delia Aquino, left their house at 1657 Balic-Balic, Sta. Rita, Olongapo City to go to the former’s stall in the public market. Raquel Lopez, the 11-year old niece of Paragua, was left behind as she had no classes that day, a Saturday. Notified of the news that their house was on fire, they went home. Paragua saw that the sala set, their merchandise (stuffed toys that they sell at the public market), and the cassette were burned. When she entered the kitchen, she saw her niece lying on her stomach with a raincoat covering her head and her neck and arms tied with CATV wire. Parts of her hand and her thigh were burned. Raquel Lopez was already dead when her aunt discovered her. The total value of the burned properties was around Thirty Thousand Pesos (P30,000.00). Emelita Paragua likewise discovered that six pieces of her jewelries were missing. SPO1 Ramon Fernandez received a report regarding the fire in Balic-Balic wherein a minor who was identified as Raquel Lopez was found dead. Together with his chief investigator, Leonardo Esteban and other personnel, he went to the scene of the incident to conduct an investigation. He found the single-storey house in complete disarray. The sala was set on fire and he found the items therein burned. Likewise the two bedrooms.

Del Rosario was then brought to the Olongapo police station. A lawyer, Atty. Norberto dela Cruz, was called in to assist del Rosario. During the custodial investigation, Atty. dela Cruz was present the whole time. He informed del Rosario what was stated in the waiver/confession. It was only when del Rosario said that he fully understood its contents that Atty. dela Cruz signed it as counsel. SPO1 Fernandez brought the accused and Atty. dela Cruz to Assistant City Prosecutor Martinez for subscription. As to be expected, Donato del Rosario’s account of the day in question, September 26, 1992, was different. He alleged that on the morning of September 26, 1992, at around 7:00 A.M., he went to Subic, Zambales to buy containers for his vinegar and Clorox business. He was with a certain Rancen Anonat, the son of his would-be employer. They returned to Balic-balic at around 9:00 A.M. and spent the night at the house of Anonat. The following day, he went to the house of his common-law wife. On the 28th of September, he went to Navotas and returned to Subic the next day. On the 30th he stayed with the brotherin-law of his common-law wife, Fernando Morales, a police officer in Subic. It was Morales who informed del Rosario that he was a suspect in the arson case. He was persuaded by Morales to place himself in the custody of the police pending the investigation of the case, as there was a threat to kill him by a certain Zapanta, a member of a salvage team in Olongapo. He spent the night in the detention cell in Subic.

He located the body of Raquel Lopez in the kitchen. Her head was covered with a pink raincoat and around her neck was a CATV wire. She was lying face down, her hands behind her back.

On October 1, four policemen from Olongapo arrived. He was led out of the detention cell to talk with the policemen. In the investigation room, he was told that he would be taken to Olongapo for further investigation. Morales told him to trust the police as they are in the same corps. He was not handcuffed when he was taken out to the vehicle which would take him to Olongapo.

Inquiries made revealed that a certain Ramon Ilagan was seen in the vicinity of the house before the incident. Ramon Ilagan was interrogated but denied the accusation against him. Since no evidence could be produced linking him to the crime, he was released.

When they arrived in the police station (Station A), he found his aunt and some people in a room. When he sat down he was boxed by an unknown man.

Thereafter, he was brought to Station B. He was forced to sign a document, but not before being mauled with a rattan stick and a chair. While he was being mauled he was forced to admit that he committed the arson. From the "mayores" in the jail, he found out that the document he had signed was a waiver. Del Rosario did not recall going to the prosecutor’s office to file or submit his counteraffidavit. Neither did he go to the fiscal’s office for preliminary investigation. Based on the findings of Dr. Richard Patilano, medico-legal officer, the cause of death of Raquel Lopez was asphyxia by strangulation and multiple physical injuries. The victim was already dead when the burning took place because the body did not show any carbonization or black color. On November 8, 1996, an order was issued stating, among other things, that since the prosecution and the defense agreed that if witness Raymund Tan (the father of the accused’s common-law wife) will be presented to testify that his son-in-law (Fernando Morales) accompanied del Rosario in surrendering to the police department of Subic, Zambales, the testimony of the said witness was dispensed with.2 On April 2, 1997, a decision was rendered by the trial court convicting the accused and imposing the following penalty: "WHEREFORE, the Court finds the accused Donato del Rosario guilty beyond reasonable doubt of the crime of Robbery with Homicide and hereby sentences him to the maximum of Reclusion Perpetua or from THIRTY-THREE (33) YEARS and FOUR (4) MONTHS and ONE (1) DAY to FORTY YEARS, and to indemnify the heirs of Raquel Lopez y Paragua the amount of ONE HUNDRED THOUSAND PESOS (P100,000.00) and to pay the costs. "SO ORDERED."3 Hence, this appeal where accused-appellant assigns the following errors allegedly committed by the trial court: "I "IT IS ERRONEOUS AND ILLOGICAL FOR THE TRIAL COURT TO CONVICT APPELLANT WHEN THE ELEMENTAL REQUISITES OF THE SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE ARE NOT PRESENT. "II "THE COURT A QUO IS LIKEWISE IN ERROR IN HANDING DOWN A CONVICTION ON A CIRCUMSTANTIAL EVIDENCE ABSENT ITS REQUISITE ELEMENTS. "III "THE LOWER COURT’S QUESTIONED DECISION OVERLOOKED MATERIAL FACTS OF IMPORTANCE AND SUBSTANCE WHICH IF CONSIDERED WOULD TILT THE SCALE OF ‘LADY JUSTICE’ TO ACQUIT THE APPELLANT."

The appeal is unmeritorious. Accused-appellant Donato del Rosario contends that it is essential to prove the intent to rob and that the intent to rob must come first before the killing transpired. He is of the impression that not all the essential requisites of the crime of robbery with homicide were proven. We hold otherwise. In the offense of robbery with homicide, a crime primarily classified as one against property and not against persons, the prosecution has to firmly establish the following elements: (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is therein used in a generic sense, was committed.4 Animus lucrandi, or intent to gain, is an internal act which can be established through the overt acts of the offender.5Although proof as to motive for the crime is essential when the evidence of the theft is circumstantial, the intent to gain or animus lucrandi is the usual motive to be presumed from all furtive taking of useful property appertaining to another, unless special circumstances reveal a different intent on the

part of the perpetrator. "xxx (T)he intent to gain may be presumed from the proven unlawful taking."6 Intent to gain (animus lucrandi) is presumed to be alleged in an information where it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender of the things subject of the robbery.7 In this case, it was apparent that the reason why accused-appellant stole the jewelry of Emelita Paragua was because he intended to gain by them. He had already admitted that he needed money to marry his common-law wife.8 We take note of the places where the jewelry were recovered – a pawnshop in Olongapo City, and a stall of a second hand jewelry buyer in Iba. Florencio Gamboa, the OIC/appraiser of the Lovely Kahael Pawnshop, remembered giving the accused-appellant nine hundred pesos (P900.00) for the two pieces of jewelry the latter had pawned, while Rogelio Adriano admitted paying the accused the amount of One Thousand Five Hundred Pesos (P1,500.00) for two jewelries. If gaining through unlawful means was farthest from the mind of the accused, why then did he pawn and sell the jewelry he had taken from Emelita Paragua for a total amount of two thousand four hundred pesos (P2,400.00)? The accused vehemently denies having robbed the house of Emelita Paragua. But the testimonies of Gamboa and the Adrianos that it was the accused who pawned and sold, respectively, the jewelry to them shows that the accused had in his possession the stolen jewelry. His failure to refute this must be taken against him. It is a rule established by an abundance of jurisprudence that when stolen property is found in the possession of one, not the owner, without a satisfactory explanation of his possession, he will be presumed to be the thief. This rule is in accordance with the disputable presumption "that a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act."9 We conclude that accused-appellant went to the house of Emelita Paragua because he intended to rob her. Lamentably, Paragua’s niece, Raquel Lopez, was in the way and she had to be dealt with in the direct manner possible. And the means resorted to by the accused-appellant was to strangle her until her very last breath. Raquel Lopez was killed on the occasion of the robbery because she was the only one in the house at that time and the only witness to the crime that accused-appellant committed. Her autopsy report revealed that she was already dead before the fire started, thus eliminating any inference that arson was committed to finish her off. The arson was but a ruse to cover up the theft. It is immaterial whether the killing transpired before or after the robbery. In the crime of robbery with homicide, the homicide may precede robbery or may occur after robbery. What is essential is that there is a nexus, an intimate connection between robbery and the killing whether the latter be prior or subsequent to the former, or whether both crimes be committed at the same time.10 Accused-appellant claims that his arrest was violative of his constitutional rights and that all the evidence obtained thereat were fruits of the poisonous tree and therefore inadmissible in any proceeding of whatever nature and for any purpose. He alleged that he was mauled to force him to sign a confession. Contrary to accused-appellant’s allegation that he was arrested, we find that he was not, and that he voluntarily surrendered to police officer Fernando Morales of the Subic police. In fact, his surrender was to be the gist of the testimony of Raymund Tan, the father of his common-law wife, had he testified: that his son-in-law, Fernando Morales, accompanied del Rosario in surrendering to the police department of Subic, Zambales.11 (Emphasis supplied) We do not see why Raymund Tan would not say that Morales accompanied del Rosario in surrendering to the police if it was not the truth. We, therefore, find that accused-appellant surrendered to the police authorities, confessed to the crime, volunteered the information as to where he pawned and sold the jewelry, and went with the Olongapo police willingly to the Lovely Kahael

Pawnshop and to the stall of the Adrianos and to the police station in Olongapo. He admitted that he was not even handcuffed.

him. They could not have dared maul him as del Rosario would have sent word to Morales as to the fate he had suffered in the hands of the Olongapo police.

After his surrender and the recovery of the jewelry, accused-appellant executed a waiver and confession in the vernacular, in the presence of his aunt and some persons whom he cannot identify.12 He was assisted by Atty. dela Cruz. The waiver reads:

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

"W A I V E R

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

"SA SINUMANG KINAUUKULAN: "AKO, DONATO DEL ROSARIO Y LACORTE, NASA HUSTONG GULANG AT NAKATIRA SA NR. 1663 Balic-balic, Sta. Rita, Olongapo City ay nagsasaad ng mga sumusunod: "1. Na ako ay kusang sumuko sa Pulisya noong ika-02 ng Oktubre 1992 dahil sa nakokonsensiya ako sa nagawa kong pagpatay kay Raquel Lopez at pagnanakaw at pagsunog ko sa bahay nila; "2. Na sa dahilang ito ay pinawawalang bisa ko ang aking mga karapatan na nakapaloob sa Art. 125 ng RPC at ako ay pumapayag na pansamantalang magpakulong at pumailalim sa pangangalaga ng mga pulis at para na rin makaharap ko ang nagrereklamo sa akin. "3. Na nilagdaan ko ang pawawalang bisa ko sa aking mga karapatan bilang patotoo sa nilalaman nito. (Sgd.) Nagsasaad

Donato

del

Rosario

The court a quo did not hand down a conviction based on circumstantial evidence. The accused-appellant voluntarily surrendered to the police and admitted his guilt by way of the waiver/confession he had signed. Circumstantial evidence had no place in this case. Accused-appellant relied on alibi as a defense to belie the accusation against him. However, nobody was presented to corroborate his statements as to his whereabouts on the day when the robbery, homicide, and arson took place, not even Rancen Anonat who was his companion on that day and who was with him when the crimes occurred. Already a weak defense, alibi becomes even weaker by reason of the failure of the defense to present any corroboration.22 In the absence of showing that the factual findings of the trial judge were reached arbitrarily or without sufficient basis, these findings are to be received with respect by, and indeed are binding on, the Supreme Court.23

Assisted by: (Sgd.) ATTY. NORBERTO DELA CRUZ"13 (Italics supplied) A confession to be admissible must be: (1) express and categorical; (2) given voluntarily, and intelligently where the accused realizes the legal significance of his act; (3) with assistance of competent and independent counsel; (4) in writing, and in the language known to and understood by the confessant; and (5) signed, or if the confessant does not know how to read and write, thumbmarked by him.14 As officers of the court, lawyers have a responsibility to assist in the proper administration of justice.15 As an officer of the court, he has in his favor the presumption of regularity in the performance of his sworn duties and responsibilities.16 Absent any showing that Atty. dela Cruz was remiss in his duty, the confession of the accused-appellant is valid and binding upon him and is thus admissible in evidence. Assuming for the sake of argument that the extrajudicial admission is not binding upon him, let it be stressed that he was positively identified by Florencio Gamboa, the appraiser of Lovely Kahael Pawnshop, and by Rogelio Adriano and his son, as the person who pawned and sold the jewelry. Both SPO1 Ramon Fernandez and Lt. Leonardo Esteban told the court that the accused voluntarily led them to the place where he pawned and sold the jewelry so that the jewelry could be recovered. If he was not the culprit, how did he come to know where to lead the policemen in order to retrieve the jewelry of Emelita Paragua? Where there is nothing to indicate that a witness was actuated by improper motives, his positive and categorical declarations on the witness stand under solemn oath deserve full faith and credence.17 We find it incredible that he was mauled to force him to sign his confession, let alone mauled. Accused-appellant admitted knowing Fernando Morales of the Subic police station. His relationship with the said police officer would make other police officers be wary of

In every case, courts must specify the award for each item of damages and make a finding thereon in the body of the decision.24 Prevailing jurisprudence awards only P50,000.00 to the heirs of the victim without need of any evidence other than the fact of the commission of the crime. The trial court therefore erred in awarding P100,000.00 as indemnity. WHEREFORE, IN VIEW OF THE FOREGOING, the conviction of appellant is AFFIRMED, with the modification that the P100,000.00 awarded as indemnity is reduced to P50,000.00 pursuant to the prevailing jurisprudence. SO ORDERED. Bellosillo (Chairman), Mendoza, Quisumbing, and De Leon, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 79269 June 5, 1991 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents. The Solicitor General for petitioner. Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood, Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas. DAVIDE, JR., J.: The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, the City Fiscal of Manila and the Judge Advocate General, filed the instant petition for certiorari and prohibition, with a prayer for restraining order/preliminary injunction, to set aside the order of respondent Judge dated July 7, 1987 granting bail to the accused Rodolfo Salas alias "Commander Bilog" in Criminal Case No. 86-48926 for Rebellion,1 and the subsequent Order dated July 30, 1987 granting the motion for reconsideration of 16 July 1987 by increasing the bail bond from P30,000.00 to P50,000.00 but denying petitioner's supplemental motion for reconsideration of July 17, 1987 which asked the court to allow petitioner to present evidence in support of its prayer for a reconsideration of the order of 7 July 1987. The pivotal issues presented before Us are whether the right to bail may, under certain circumstances, be denied to a person who is charged with an otherwise bailable offense, and whether such right may be waived. The following are the antecedents of this petition: In the original Information2 filed on 2 October 1986 in Criminal Case No. 86-48926 of the Regional Trial Court of Manila, later amended in an Amended Information3 which was filed on 24 October 1986, private respondent Rodolfo Salas, alias "Commander Bilog", and his co-accused were charged for the crime of rebellion under Article 134, in relation to Article 135, of the Revised Penal Code allegedly committed as follows: That in or about 1968 and for some time before said year and continuously thereafter until the present time, in the City of Manila and elsewhere in the Philippines, the Communist Party of the Philippines, its military arm, the New People's Army, its mass infiltration network, the National Democratic Front with its other subordinate organizations and fronts, have, under the direction and control of said organizations' leaders, among whom are the aforenamed accused, and with the aid, participation or support of members and followers whose whereabouts and identities are still unknown, risen publicly and taken arms throughout the country against the Government of the Republic of the Philippines for the purpose of overthrowing the present Government, the seat of which is in the City of Manila, or of removing from the allegiance to that government and its laws, the country's territory or part of it; That from 1970 to the present, the above-named accused in their capacities as leaders of the aforenamed organizations, in conspiracy with, and in support of the cause of, the organizations aforementioned, engaged themselves in war against the forces of the government, destroying property or committing serious violence, and other acts in the pursuit of their unlawful purpose, such as . . . (then follows the enumeration of specific acts committed before and after February 1986). At the time the Information was filed the private respondent and his co-accused were in military custody following their arrest on 29 September 1986 at the Philippine General Hospital, Taft Ave., Manila; he had earlier escaped from military detention and a cash reward of P250,000.00 was offered for his capture.4 A day after the filing of the original information, or on 3 October 1986, a petition for habeas corpus for private respondent and his co-accused was filed with this Court5 which, as shall hereafter be discussed in detail, was dismissed in Our resolution of 16 October 1986 on the basis of the agreement of the parties under which herein

private respondent "will remain in legal custody and will face trial before the court having custody over his person" and the warrants for the arrest of his co-accused are deemed recalled and they shall be immediately released but shall submit themselves to the court having jurisdiction over their person. On November 7, 1986 , private respondent filed with the court below a Motion to Quash the Information alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no jurisdiction over the offense charged; (c) the Court has no jurisdiction over the persons of the defendants; and (d) the criminal action or liability has been extinguished,6 to which petitioner filed an Opposition7 citing, among other grounds, the fact that in the Joint Manifestation and Motion dated October 14, 1986, in G.R. No. 76009, private respondent categorically conceded that: xxx

xxx

xxx

Par. 2 (B) — Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. In his Order of March 6, 1987,8 respondent Judge denied the motion to quash. Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a petition for bail,9which herein petitioner opposed in an Opposition filed on 27 May 198710 on the ground that since rebellion became a capital offense under the provisions of P.D. Nos. 1996, 942 and 1834, which amended Article 135 of the Revised Penal Code, by imposing the penalty of reclusion perpetua to death on those who promote, maintain, or head a rebellion the accused is no longer entitled to bail as evidence of his guilt is strong. On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos. 1996, 942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it existed before the amendatory decrees. Thus, the original penalty for rebellion, prision mayor and a fine not to exceed P20,000.00, was restored. Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83, No. 24) which was officially released for circulation on June 26, 1987. In his Order of 7 July 198711 respondent Judge, taking into consideration Executive Order No. 187, granted private respondent's petition for bail, fixed the bail bond at P30,000.00 and imposed upon private respondent the additional condition that he shall report to the court once every two (2) months within the first ten (10) days of every period thereof. In granting the petition respondent Judge stated: . . . There is no more debate that with the effectivity of Executive Order No. 187, the offense of rebellion, for which accused Rodolfo Salas is herein charged, is now punishable with the penalty of prision mayor and a fine not exceeding P20,000.00, which makes it now bailable pursuant to Section 13, Article III, 1986 Constitution and Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike the old rule, bail is now a matter of right in non-capital offenses before final judgment. This is very evident upon a reading of Section 3, Rule 114, aforementioned, in relation to Section 21, same rule. In view, therefore, of the present circumstances in this case, said accused-applicant is now entitled to bail as a matter of right inasmuch as the crime of rebellion ceased to be a capital offense. As to the contention of herein petitioner that it would be dangerous to grant bail to private respondent considering his stature in the CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe out all vestiges of our democracy and to replace it with their ideology, and that his release would allow his return to his organization to direct its armed struggle to topple the government before whose courts he invokes his constitutional right to bail, respondent Judge replied: True, there now appears a clash between the accused's constitutional right to bail in a non-capital offense, which right is guaranteed in the Bill of Rights and, to quote again the prosecution, "the existence of the government that bestows the right, the paramount interest of the state." Suffice to state that the Bill of Rights, one of which is the right to bail, is a "declaration of the rights of the individual, civil, political and social and economic, guaranteed by the Constitution against impairment or intrusion by any form of governmental action. Emphasis is placed on the dignity of man and the worth of individual. There is recognition of certain inherent and inalienable rights of the individual, which the government is prohibited

from violating" (Quisumbing-Fernando, Philippine Constitutional Law, 1984 Edition, p. 77). To this Court, in case of such conflict as now pictured by the prosecution, the same should be resolved in favor of the individual who, in the eyes of the law, is alone in the assertion of his rights under the Bill of Rights as against the State. Anyway, the government is that powerful and strong, having the resources, manpower and the wherewithals to fight those "who oppose, threathen (sic) and destroy a just and orderly society and its existing civil and political institutions." The prosecution's fear may or may not be founded that the accused may later on jump bail and rejoin his comrades in the field to sow further disorders and anarchy against the duly constituted authorities. But, then, such a fear can not be a reason to deny him bail. For the law is very explicit that when it comes to bailable offenses an accused is entitled as a matter of light to bail. Dura est lex sed lex. In a motion to reconsider12 the above order filed on 16 July 1987, petitioner asked the court to increase the bail from P30,000.00 to P100,000.00 alleging therein that per Department of Justice Circular No. 10 dated 3 July 1987, the bail for the, provisional release of an accused should be in an amount computed at P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense and explaining that it is recommending P100,000.00 because the private respondent "had in the past escaped from the custody of the military authorities and the offense for which he is charged is not an ordinary crime, like murder, homicide or robbery, where after the commission, the perpetrator has achieved his end" and that "the rebellious acts are not consummated until the well-organized plan to overthrow the government through armed struggle and replace it with an alien system based on a foreign ideology is attained." reconsideration13

On 17 July 1987, petitioner filed a supplemental motion for indirectly asking the court to deny bail to the private respondent and to allow it to present evidence in support thereof considering the "inevitable probability that the accused will not comply with this main condition of his bail –– to appear in court for trial," a conclusion it claims to be buttressed "by the following facts which are widely known by the People of the Philippines and which this Honorable Court may have judicial notice of: 1. The accused has evaded the authorities for thirteen years and was an escapee from detention when arrested; 2. He was not arrested at his residence as he had no known address; 3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and presented a Driver's License to substantiate his false identity; 4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address; 5. He and his companions were on board a private vehicle with a declared owner whose identity and address were also found to be false; 6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a reward of P250,000.00 was offered and paid for his arrest, which "clearly indicate that the accused does not entertain the slightest intention to appear in court for trial, if released." Petitioner further argues that the accused, who is the Chairman of the Communist Party of the Philippines and head of its military arm, the NPA, together with his followers, are now engaged in an open warfare and rebellion against this government and threatens the existence of this very Court from which he now seeks provisional release," and that while he is entitled to bail as a matter of right in view of Executive Order No. 187 which restored the original penalty for rebellion under Article 135 of the Revised Penal Code, yet, when the interest of the State conflicts with that of an individual, that of the former prevails for "the right of the State of self-preservation is paramount to any of the rights of an individual enshrined in the Bill of Rights of the Constitution." Petitioner further invokes precedents in the United States of America holding "that there is no absolute constitutional barrier to detention of potentially dangerous resident aliens pending deportation proceedings,14 and that an arrestee may be incarcerated until trial as he presents a risk of flight;15 and sustaining a detention prior to trial of arrestee charged with serious felonies who are found after an adversary hearing to pose threat to the safety of individuals and to the community which no condition of release can dispel.16

On 30 July 1987 respondent Judge handed down the Order17 adverted to in the introductory portion of this decision the dispositive portion of which reads: WHEREFORE, in the light of the foregoing considerations, the Court finds the "supplemental" motion for reconsideration to be without merit and hereby denies it but finds the first motion for reconsideration to be meritorious only insofar as the amount of bail is concerned and hereby reconsiders its Order of July 7, 1987 only to increase the amount of bail from P30,000.00 to P50,000.00, subject to the approval of this Court, and with the additional condition that accused Rodolfo Salas shall report to the court once every two (2) months within the first ten (10) days of every period thereof (Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66 SCRA 58). In denying the supplemental motion for reconsideration the respondent Judge took into account the "sudden turn-about" on the part of the petitioner in that a day earlier it filed a motion for reconsideration wherein it conceded the right of the private respondent to bail but merely asked to increase the amount of bail; observed that it is only a reiteration of arguments in its opposition to the petition for bail of 25 May 1987; asserted that the American precedents are not applicable since the cases involved deportation of aliens and, moreover, the U.S. Federal Constitution does not contain a proviso on the right of an accused to bail in bailable offenses, but only an injunction against excessive bail; and quoted the concurring opinion of the late Justice Pedro Tuason in the cases of Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90 Phil, 172. Unable to agree with said Order, petitioner commenced this petition submitting therein the following issues: THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND IN TOTAL DISREGARD OF THE PREVAILING REALITIES, WHEN HE DENIED PETITIONER'S SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENT RODOLFO SALAS. THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT RODOLFO SALAS. in support of which petitioner argues that private respondent is estopped from invoking his right to bail, having expressly waived it in G.R. No. 76009 when he agreed to "remain in legal custody and face trial before the court having custody of his person" in consideration of the recall of the warrant of arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail, even in non-capital offenses, is not absolute when there is prima facie evidence that the accused is a serious threat to the very existence of the State, in which case the prosecution must be allowed to present evidence for the denial of bail. Consequently, respondent Judge acted with grave abuse of discretion when he did not allow petitioner to present all the evidence it may desire to support its prayer for the denial of bail and when he declared that the State has forfeited its right to do so since during all the time that the petition for bail was pending, it never manifested, much less hinted, its intention to adduce such evidence. And that even if release on bail may be allowed, respondent judge, in fixing the amount of bail at P50,000.00 (originally P30,000.00 only), failed to take into account the lengthy record of private respondents' criminal background, the gravity of the pending charge, and the likelihood of flight.18 In Our resolution of 11 August 198719 We required the respondents to comment on the petition and issued a Temporary Restraining Order ordering respondent Judge to cease and desist from implementing his order of 30 July 1987 granting bail to private respondent in the amount of P50,000.00. In his Comment filed on 27 August 1987,20 private respondent asks for the outright dismissal of the petition and immediate lifting of the temporary restraining order on the following grounds: I RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE ESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THE FIRST TIME ON APPEAL. II RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL.

III RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE (RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS MANDATED BY THE CONSTITUTION. IV THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO PRESENT EVIDENCE IS CORRECT. PETITIONER'S ALLEGED RIGHT TO PRESENT EVIDENCE IS NON-EXISTENT AND/OR HAD BEEN WAIVED. V THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS.

We required the petitioner to reply to the comment of private respondent.21 The reply was filed on 18 September 1987.22 In Our resolution of 15 October 198723 We gave due course to the petition and required the parties to file simultaneously their memoranda within twenty days from notice. In their respective manifestations and motions dated 5 November24 and 23 November 198725 petitioner and private respondents asked to be excused from filing their Memoranda and that the petition and reply be considered as the Memorandum for petitioner and the Comment as the Memorandum for private respondent, which We granted in Our resolution of 19 November 198726 and 1 December 1987,27 respectively.

Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua.31 To that extent the right is absolute.32 And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite the fact that the accused was already convicted, although erroneously, by the trial court for the complex crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held: . . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom.

In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on the issues raised in this petitions,28 which he complied with by filing his Manifestation on 30 May 199029 wherein he manifests that he supports the petition and submits that the Order of respondent Judge of July 7, July 17 and July 30, 1987 should be annulled and set aside asserting that private respondent had waived the light to bail in view of the agreement in G.R. No. 76009; that granting bail to him is accepting wide-eyed his undertaking which he is sure to break; in determining bail, the primary consideration is to insure the attendance of the accused at the trial of the case against him which would be frustrated by the "almost certainty that respondent Salas will lump bail of whatever amount"; and application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules on Criminal Procedure on the amount of bail dictates denial of bail to private respondent. The Solicitor General likewise maintains that the right of the petitioner to hearing on the application of private respondent for bail cannot be denied by respondent Judge.

The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit:

And now on the issues presented in this case.

Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to determining whether or not evidence of guilt is strong.33 But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In Teehankee vs. Director of Prisons, supra., We held:

I. Unquestionably, at the time the original and the amended Informations for rebellion and the application for bail were filed before the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to death. During the pendency of the application for bail Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the governing law at the time the respondent court resolved the petition for bail. We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is attached the penalty of prision mayor and a fine not exceeding P20,000.00.30 It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution which provides thus: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be prescribed by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection.

The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that: The Constitution of the United States and the constitution of the many states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption thereof is great!34 Accordingly, the prosecution does not have the right to present evidence for the denial of bail in the instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail.35

Section 3, Rule 114 of the Rules of Court, as amended, also provides: Bail, a matter of right: exception. — All persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong.

We agree, however, with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489, 495:

Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other case. . . . In the instant case petitioner has sufficiently made out allegations which necessitate a grant of an opportunity to be heard for the purpose of determining the amount of bail, but not for the denial thereof because aforesaid Section 10 of Rule 114 does not authorize any court to deny bail.

Democratic Front, organizations dedicated to the overthrow of the Government through violent means, and having actually committed acts of rebellion under Article 134 of the Revised Penal Code, as amended. After their arrest they were forthwith charged with rebellion before Branch XII of the Regional Trial Court, National Capital Region in Criminal Case No. 8648926 and on 3 October warrants for their arrest were issued and respondents continue to detain them because of the warrants of arrest and the pendency of the criminal cases against them. Respondents further allege that, contrary to the allegation in the petition, herein private respondent was not a member of the NDF panel involved in peace negotiations with the Government; neither is he and his companions Cruz and Concepcion covered by any, safe conduct pass issued by competent authorities. 3. At the hearing on 14 October 1986 the parties informed the Court of certain agreements reached between them. We issued a resolution reading as follows:

II. It must, however, be stressed that under the present state of the law, rebellion is no longer punishable byprision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it now reads: Article 135. Penalty for rebellion, insurrection or coup d'etat. –– – Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua. xxx

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When this case was called for hearing this morning, Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado, Edgardo Pamin-tuan, Casiano Sabile, Ramon Cura, and William Chua appeared for the petitioners with Atty. Capulong arguing for the petitioners. Solicitor General Sedfrey Ordonez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva appeared for the respondents, with Solicitor General Ordoñez arguing for the respondents. Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court that in conformity with the agreement reached with the government, the petition for habeas corpus will be withdrawn with detainee Rodolfo Salas to remain under custody, whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be released immediately.

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This amendatory law cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.36 III. We agree with Petitioner that private respondent has, however, waived his right to bail in G.R. No. 76009. On 3 October 1986, or the day following the filing of the original information in Criminal Case No. 86-48926 with the trial court, a petition for habeas corpus for herein private respondent, and his co-accused Josefina Cruz and Jose Concepcion, was filed with this Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montaño, and Col. Saldajeno praying, among others, that the petition be given due course and a writ of habeas corpusbe issued requiring respondents to produce the bodies of herein private respondent and his co-accused before the Court and explain by what authority they arrested and detained them. The following proceedings took place thereafter in said case: 1. In a resolution of 7 October 1986 We issued a writ of habeas corpus, required respondents to make a return of the writ on or before the close of office hours on 13 October and set the petition for hearing on 14 October 1986 at 10:00 o'clock in the morning. 2. On 13 October 1986 respondents, through the Office of the Solicitor General, filed a Return To The Writ of Habeas Corpus alleging therein that private respondent and Josefina Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene Zamora" were apprehended by the military on September 29, 1986 in the evening at the Philippine General Hospital Compound at Taft Ave., Mangga being leaders or members of the Communist Party of the Philippines, New People's Army and National

Solicitor General Sedfrey Ordoñez, also in open Court, confirmed the foregoing statement made by petitioners' counsel regarding the withdrawal of the petition for habeas corpus, declaring that no objection will be interposed to the immediate release of detainees Josefina Cruz and Jose Milo Concepcion, and that no bond will be required of them, but they will continue to face trial with their co-accused, Rodolfo Salas; further, that they will not be rearrested on the basis of the warrants issued by the trial court provided that they manifest in open Court their willingness to subject themselves to the jurisdiction of the Court and to appear in court when their presence is required. In addition, he stated that he is willing to confer with petitioners' counsel today relative to the compromise agreement that they have previously undertaken to submit. Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that on his oath as member of the Bar, the detainees Josefina Cruz and Jose Milo Concepcion have agreed to subject themselves to the jurisdiction of the trial court, the Court ordered their immediate release. Thereafter, the Court approved the foregoing manifestations and statements and required both parties to SUBMIT to the Court their compromise agreement by 4:00 o'clock this afternoon. Teehankee, C.J., is on official leave. 4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a Joint Manifestation and Motion duly signed by Atty. Romeo Capulong, counsel for petitioners, and Solicitor General Sedfrey Ordoñez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva, counsel for respondents, which reads as follows: COME NOW petitioners and the respondents, assisted by their respective counsel, and to this Honorable Tribunal respectfully manifest:

1. That in the discussion between Romeo Capulong, petitioners' counsel, and Solicitor General Sedfrey A. Ordoñez on October 13, 1986 exploratory talks were conducted to find out how the majesty of the law may be preserved and human considerations may be called into play. 2. That in the conference both counsel agreed to the following terms of agreement: a. The petition for habeas corpus will be withdrawn by petitioners and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion (People v. Rodolfo Salas, et al., Criminal Case No. 4886 [should be 86-48926], Regional Trial Court, National Capital Judicial Region) filed against them under their personal recognizance. b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of formal manifestation before the Supreme Court that they will submit themselves to the court having jurisdiction over their person. 3. That on October 14, the Solicitor General was able to obtain the conformity of the Government to the foregoing terms which were likewise accepted by petitioner (sic) and their counsel of record. 4. That the two counsel submitted their oral manifestation during the hearing on October 14 and the present manifestation in compliance with the resolution announced in court this morning. WHEREFORE, it is prayed that the petition for habeas corpus be dismissed. 5. On 16 October 1986 We issued the following resolution: G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montaño and Col. Virgilio Saldajeno] considering the Joint Manifestation and Motion dated October 14, 1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and Ricardo Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey A. Ordonez and Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva as counsel for respondents which states that they have entered into an agreement whereby: [a] the petition for habeas corpus will be withdrawn by petitioners, and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion [People vs. Rodolfo Salas, et al., Criminal Case No. 4886, Regional Trial Court, National Capital Judicial Region, Branch XII, Manila], filed against them, on their personal recognizance; [b] petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person; and [c] the warrant of arrest for the person of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of the formal manifestation before this Court that they will submit themselves to the court having jurisdiction over their person and in view of the said agreement, the petition for habeas corpus be dismissed, the Court Resolved to DISMISS the petition for habeas corpusbut subject to the condition that petitioners' lead counsel, Atty. Capulong, upon his oath as member of the Bar, shall abide by his commitment to ensure

the appearance of Josefina Cruz and Jose Milo Concepcion at the trial of the criminal case for rebellion filed against them. Teehankee, C.J., is on official leave. It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody even during the pendency of the trial of his criminal case, [he] has expressly waived his right to bail."37 Upon the other hand, private respondent asserts that this claim is totally devoid of factual and legal basis, for in their petition for habeas corpusthey precisely questioned the legality of the arrest and the continued detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was not resolved by this Court or by the compromise agreement of the parties but left open for further determination in another proceeding. Moreover, the matter of the right to bail was neither raised by either party nor resolved by this Court, and the legal steps promptly taken by private respondent after the agreement was reached, like the filing of the motion to quash on 7 November 1986 and the petition for bail on 14 May 1987, were clear and positive assertions of his statutory and constitutional rights to be granted not only provisional but final and permanent liberty. Finally, private respondent maintains that the term "legal custody" as used in the Joint Manifestation and Motion simply means that private respondent agreed to continue to be in the custody of the law or in custodia legis and nothing else; it is not to be interpreted as waiver. Interestingly, private respondent admits that: "Custody" has been held to mean nothing less than actual imprisonment. It is also defined as the detainer of a person by virtue of a lawful authority, or the "care and possession of a thing or person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741-742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306) He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for admission to bail should be in the custody of the law or otherwise deprived of his liberty."38 When the parties in G.R. No. 76009 stipulated that: b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual confinement or detention, as distinguished from the stipulation concerning his co-petitioners, who were to be released in view of the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private respondent and his co-accused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only they shall be released, further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement. In defining bail as: . . . the security given for the release of a person in custody of the law, . . . Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial.39 It presupposes that the person applying for it should be in the custody of the law or otherwise deprived of liberty.40 Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private respondent had unequivocably waived his right to bail.

But, is such waiver valid? Article 6 of the Civil Code expressly provides: Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it."41

This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code. We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the private respondent. WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal Case No. 86-48926 entitled People of the Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry, Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion, are hereby NULLIFIED and SET ASIDE.

As to what rights and privileges may be waived, the authority is settled: SO ORDERED. . . . the doctrine of waiver extends to rights and privileges of any character, and, since the word "waiver" covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . . Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived. While it has been stated generally that all personal rights conferred by statute and guaranteed by constitutionmay be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of waiver.42 In Commonwealth vs. Petrillo,43 it was held: Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, as well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be. It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will."44 This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and seizures;45 the right to counsel and to remain silent;46 and the right to be heard.47 Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights.1âwphi1 Section 12(l) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states: . . . These rights cannot be waived except in writing and in the presence of counsel.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea and Regalado, JJ., concur. Sarmiento, J., took no part.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 115407 August 28, 1995 MIGUEL P. PADERANGA, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

REGALADO, J.: The adverse decision in this case promulgated by respondent Court of Appeals in CAG.R. SP No. 32233 on November 24, 1993, as well as its resolution of April 26, 1994 denying the motion for reconsideration thereof, are challenged by petitioner Miguel P. Paderanga in this appeal by certiorari through a petition which raises issues centering mainly on said petitioner's right to be admitted to bail. On January 28, 1990, petitioner was belatedly charged in an amended information as a co-conspirator in the crime of multiple murder in Criminal Case No. 86-39 of the Regional Trial Court, Branch 18 of Cagayan de Oro City for the killing of members of the Bucag family sometime in 1984 in Gingoog City of which petitioner was the mayor at the time. The original information, filed on October 6, 1986 with the Regional Trial Court of Gingoog City,1 had initially indicted for multiple murder eight accused suspect, namely, Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe And Richard Doe as the alleged conspirators in the indiscriminate slaying of the spouses Romeo and Juliet Bucag and their son, Romeo, Jr. However, only one of the accused, Felipe Galarion, was apprehended, tried and eventually convicted. Galarion later escaped from prison. The others have remained at large up to the present. 2 In a bizarre twist of events, one Felizardo ("Ely") Roxas was implicated in the crime. In an amended information dated October 6, 1988, he was charged as a co-accused therein. As herein petitioner was his former employer and thus knew him well, Roxas engaged the former's services as counsel in said case. Ironically, in the course of the preliminary investigation therein, said accused, in a signed affidavit dated March 30, 1989 but which he later retracted on June 20, 1990, implicated petitioner as the supposed mastermind behind the massacre of the Bucag family.3 Then, upon the inhibition of the City Prosecutor of Cagayan de Oro City from the case per his resolution of July 7, 1989, the Department of Justice, at the instance of said prosecutor, designated a replacement, State Prosecutor Henrick F. Gingoyon, for purposes of both the preliminary investigation and prosecution of Criminal Case No. 86-39. Pursuant to a resolution of the new prosecutor dated September 6, 1989, petitioner was finally charged as a co-conspirator in said criminal case in a second amended information dated October 6, 1992. Petitioner assailed his inclusion therein as a co-accused all the way to this Court in G.R. No. 96080 entitled "Atty. Miguel P. Paderanga vs. Hon. Franklin M. Drilon, Hon. Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca B. Tan." In an en banc decision promulgated on April 19, 1991, the Court sustained the filing of the second amended information against him.4 Under this backdrop, the trial of the base was all set to start with the issuance of an arrest warrant for petitioner's apprehension but, before it could be served on him, petitioner through counsel, filed on October 28, 1992 a motion for admission to bail with the trial court which set the same for hearing on November 5, 1992. Petitioner duly furnished copies of the motion to State Prosecutor Henrick F. Gingoyon, the Regional State Prosecutor's Office, and the private prosecutor, Atty. Benjamin Guimong. On November 5, 1992, the trial court proceeded to hear the application for bail. Four of petitioner's counsel appeared in court but only Assistant Prosecutor Erlindo Abejo of the Regional State Prosecution's Office appeared for the prosecution.5 As petitioner was then confined at the Cagayan Capitol College General Hospital due to "acute costochondritis," his counsel manifested that they were submitting custody over the person of their client to the local chapter president of the integrated Bar of the Philippines and that, for purposes of said hearing of his bail application, he considered being in the custody of the law. Prosecutor Abejo, on the other hand, informed the trial court that in accordance with the directive of the chief of their office, Regional State prosecutor Jesus Zozobrado, the prosecution was neither supporting nor opposing the application for bail and that they were submitting the same to the sound discretion of the trail judge.6

Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waiving any further presentation of evidence. On that note and in a resolution dated November 5, 1992, the trial court admitted petitioner to bail in the amount of P200,000.00. The following day, November 6, 1992, petitioner, apparently still weak but well enough to travel by then, managed to personally appear before the clerk of court of the trial court and posted bail in the amount thus fixed. He was thereafter arraigned and in the trial that ensued, he also personally appeared and attended all the scheduled court hearings of the case.7 The subsequent motion for reconsideration of said resolution filed twenty (20) days later on November 26, 1992 by Prosecutor Gingoyon who allegedly received his copy of the petition for admission to bail on the day after the hearing, was denied by the trial court in its omnibus order dated March 29, 1993. On October 1, 1993, or more than six (6) months later, Prosecutor Gingoyon elevated the matter to respondent Court of Appeals through a special civil action for certiorari. Thus were the resolution and the order of the trial court granting bail to petitioner annulled on November 24, 1993, in the decision now under review, on the ground that they were tainted with grave abuse of discretion.8 Respondent court observed in its decision that at the time of petitioner's application for bail, he was not yet "in the custody of the law," apparently because he filed his motion for admission to bail before he was actually arrested or had voluntarily surrendered. It further noted that apart from the circumstance that petitioner was charged with a crime punishable by reclusion perpetua, the evidence of guilt was strong as borne out by the fact that no bail was recommended by the prosecution, for which reasons it held that the grant of bail was doubly improvident. Lastly, the prosecution, according to respondent court, was not afforded an opportunity to oppose petitioner's application for bail contrary to the requirements of due process. Hence, this appeal. Petitioner argues that, in accordance with the ruling of this Court in Santiago vs. Vasquez etc., et al.,9 his filing of the aforesaid application for bail with the trial court effectively conferred on the latter jurisdiction over his person. In short, for all intents and purposes, he was in the custody of the law. In petitioner's words, the "invocation by the accused of the court's jurisdiction by filing a pleading in court is sufficient to vest the court with jurisdiction over the person of the accused and bring him within the custody of the law." Petitioner goes on to contend that the evidence on record negates the existence of such strong evidence as would bar his provisional release on bail. Furthermore, the prosecution, by reason of the waiver by Prosecutor Abejo of any further presentation of evidence to oppose the application for bail and whose representation in court in behalf of the prosecution bound the latter, cannot legally assert any claim to a denial of procedural due process. Finally, petitioner points out that the special civil action for certiorari was filed in respondent court after an unjustifiable length of time. On the undisputed facts , the legal principles applicable and the equities involved in this case, the Court finds for petitioner. 1. Section 1 of Rule 114, as amended, defines bail as the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearing before any court as required under the conditions specified in said Rule. Its main purpose, then, is to relieve an accused from the rigors of imprisonment until his conviction and yet secure his appearance at the trial.10 As bail is intended to obtain or secure one's provisional liberty, the same cannot be posted before custody over him has been acquired by the judicial authorities, either by his lawful arrest or voluntary surrender.11 As this Court has put it in a case "it would be incongruous to grant bail to one who is free."12 The rationale behind the rule is that it discourages and prevents resort to the former pernicious practice whereby an accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements therefor.13 Thus, in Feliciano vs. Pasicolan, etc., et al.,14 where the petitioner who had been charged with kidnapping with murder went into hiding without surrendering himself, and shortly thereafter filed a motion asking the court to fix the amount of the bail bond for his release pending trial, the Supreme Court categorically pronounced that said petitioner was not eligible for admission to bail. As a paramount requisite then, only those persons who have either been arrested, detained, or other wise deprived of their freedom will ever have occasion to seek the protective mantle extended by the right to bail. The person seeking his provisional release under the auspices of bail need not even wait for a formal complaint or

information to be filed against him as it is available to "all persons"15 where the offense is bailable. The rule is, of course, subject to the condition or limitation that the applicant is in the custody of the law.16 On the other hand, a person is considered to be in the custody of the law (a) when he is arrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or by warrantless arrest under Section 5, Rule 113 in relation to Section 7, Rule 112 of the revised Rules on Criminal Procedure, or (b) when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities.17 in this light, the ruling, vis-a-vis the facts in Santiago vs. Vasquez, etc., et al.,18 should be explained. In said case, the petitioner who was charged before the Sandiganbayan for violation of the Anti-Graft and Corrupt Practices Act, filed through counsel what purported to be an "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond." Said petitioner was at the time confined in a hospital recuperating from serious physical injuries which she sustained in a major vehicular mishap. Consequently, she expressly sought leave "that she be considered as having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other proceedings." On the basis of said ex-parte motion and the peculiar circumstances obtaining in that incident, the Sandiganbayan authorized petitioner to post a cash bail bond for her provisional liberty without need of her personal appearance in view of her physical incapacity and as a matter of humane consideration. When the Sandiganbayan later issued a hold departure order against her, she question the jurisdiction of that court over her person in a recourse before this Court, on the ground that "she neither been arrested nor has she voluntarily surrendered, aside from the fact that she has not validly posted bail since she never personally appeared before said court" In rejecting her arguments, the Court held that she was clearly estopped from assailing the jurisdiction of the Sandiganbayan for by her own representations in the urgent ex parte motion for bail she had earlier recognized such jurisdiction. Furthermore, by actually posting a cash bail was accepted by the court, she had effectively submitted to its jurisdiction over her person. Nonetheless, on the matter of bail, the Court took pains to reiterate that the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender. In the case of herein petitioner, it may be conceded that he had indeed filed his motion for admission to bail before he was actually and physically placed under arrest. He may, however, at that point and in the factual ambience therefore, be considered as being constructively and legally under custody. Thus in the likewise peculiar circumstance which attended the filing of his bail application with the trail court, for purposes of the hearing thereof he should be deemed to have voluntarily submitted his person to the custody of the law and, necessarily, to the jurisdiction of the trial court which thereafter granted bail as prayed for. In fact, an arrest is made either by actual restraint of the arrestee or merely by his submission to the custody of the person making the arrest.19 The latter mode may be exemplified by the so-called "house arrest" or, in case of military offenders, by being "confined to quarters" or restricted to the military camp area. It should be stressed herein that petitioner, through his counsel, emphatically made it known to the prosecution and to the trail court during the hearing for bail that he could not personally appear as he was then confined at the nearby Cagayan Capitol College General Hospital for acute costochondritis, and could not then obtain medical clearance to leave the hospital. The prosecution and the trial court, notwithstanding their explicit knowledge of the specific whereabouts of petitioner, never lifted a finger to have the arrest warrant duly served upon him. Certainly, it would have taken but the slightest effort to place petitioner in the physical custody of the authorities, since he was then incapacitated and under medication in a hospital bed just over a kilometer away, by simply ordering his confinement or placing him under guard. The undeniable fact is that petitioner was by then in the constructive custody of the law. Apparently, both the trial court and the prosecutors agreed on that point since they never attempted to have him physically restrained. Through his lawyers, he expressly submitted to physical and legal control over his person, firstly, by filing the application for bail with the trail court; secondly, by furnishing true information of his actual whereabouts; and, more importantly, by unequivocally recognizing the jurisdiction of the said court. Moreover, when it came to his knowledge that a warrant for his arrest had been issued, petitioner never made any attempt or evinced any intent to evade the clutches of the law or concealed his whereabouts from the authorities since the day he was charged in court, up to the submission application for bail, and until the day of the hearing thereof.

At the hearing, his counsel offered proof of his actual confinement at the hospital on account of an acute ailment, which facts were not at all contested as they were easily verifiable. And, as a manifestation of his good faith and of his actual recognition of the authority of trial court, petitioner's counsel readily informed the court that they were surrendering custody of petitioner to the president of the Integrated Bar of the Philippines, Misamis Oriental Chapter.20 In other words, the motion for admission to bail was filed not for the purpose or in the manner of the former practice which the law proscribes for the being derogatory of the authority and jurisdiction of the courts, as what had happened in Feliciano. There was here no intent or strategy employed to obtain bail in absentia and thereby be able to avoid arrest should the application therefore be denied. 2. Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees shall be allowed bail, except only those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. In pursuance thereof, Section 4 of Rule 114, as amended, now provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. The right to bail, which may be waived considering its personal nature21 and which, to repeat, arises from the time one is placed in the custody of the law, springs from the presumption of innocence accorded every accused upon whom should not be inflicted incarceration at the outset since after trial he would be entitled to acquittal, unless his guilt be established beyond reasonable doubt.22 Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, an accused is entitled to be released on bail as a matter of right, the present exceptions thereto being the instances where the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment23 and the evidence of guilt is strong. Under said general rule, upon proper application for admission to bail, the court having custody of the accused should, as a matter of course, grant the same after a hearing conducted to specifically determine the conditions of the bail in accordance with Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of bail becomes a matter of judicial discretion on the part of the court under the exceptions to the rule, a hearing, mandatory in nature and which should be summary or otherwise in the discretion of the court,24 is required with the participation of both the defense and a duly notified representative of the prosecution, this time to ascertain whether or not the evidence of guilt is strong for the provisional liberty of the applicant.25 Of course, the burden of proof is on the prosecution to show that the evidence meets the required quantum.26 Where such a hearing is set upon proper motion or petition, the prosecution must be give an opportunity to present, within a reasonable time, all the evidence that it may want to introduce before the court may resolve the application, since it is equally entitled as the accused to due process.27 If the prosecution is denied this opportunity, there would be a denial of procedural due process, as a consequence of which the court's order in respect of the motion or petition is void.28 At the hearing, the petitioner can rightfully cross-examine the witnesses presented by the prosecution and introduce his own evidence in rebuttal.29 When, eventually, the court issues an order either granting or refusing bail, the same should contain a summary of the evidence for the prosecution, followed by its conclusion as to whether or not the evidence of guilt is strong.30 The court, though, cannot rely on mere affidavits or recitals of their contents, if timely objected to, for these represent only hearsay evidence, and thus are insufficient to establish the quantum of evidence that the law requires.31 In this appeal, the prosecution assails what it considers to be a violation of procedural due process when the court below allowed Assistant Prosecutor Erlindo Abejo of the Regional State Prosecutor's Office to appear in behalf of the prosecution, instead of State Prosecutor Henrick P. Gingoyon who is claimed to be the sole government prosecutor expressly authorized to handle the case and who received his copy of the motion only on the day after the hearing had been conducted. Accordingly, the prosecution now insists that Prosecutor Abejo had no authority at all to waive the presentation of any further evidence in opposition to the application for bail and to submit the matter to the sound discretion of the trial court. In addition, they argue that the prosecution was not afforded "reasonable time" to oppose that application for bail. We disagree. Firstly, it is undisputed that the Office of the Regional State Prosecutor acted as the collaborating counsel, with State Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the basis of an authority from then Chief State Prosecutor Fernando de Leon which was sent through radio message on July 10, 1992 and duly received by the Office of the Regional State Prosecutor on the same date. This authorization, which was to be continuing until and unless it was expressly withdrawn, was later confirmed

and then withdrawn only on July 12, 1993 by then Secretary of Justice Franklin M. Drilon. This was done after one Rebecca Bucag-tan questioned the authority of Regional State Prosecutor Jesus Zozobrado and State Prosecutor II Erlindo Abejo to enter their appearance as collaborating government prosecutors in said criminal case.32 It was in fact by virtue of this arrangement that the same Prosecutor Zozobrado and Prosecutor Perseverando Arana entered their appearance as collaborating prosecutor in the previous hearing in said case.33 Hence, on the strength of said authority and of its receipt of the notice of the hearing for bail, the Regional State Prosecutor's Office, through Prosecutor Abejo, could validly represent the prosecution in the hearing held on November 5, 1992.

PROSECUTOR ABEJO: Yes, Your Honor. COURT: Without presenting any further evidence? PROSECUTOR ABEJO:

Secondly, although it is now claimed that Prosecutor Abejo was allegedly not familiar with the case, he nonetheless was explicitly instructed about the position of the Regional State Prosecutor's Office on the matter. Prosecutor Zozobrado, whose office received its copy of the motion on the very day when it was sent, that is, October 28, 1992, duly instructed Prosecutor Abejo to manifest to the court that the prosecution was neither supporting nor opposing the application for bail and that they were submitting the matter to its sound discretion. Obviously, what this meant was that the prosecution, at that particular posture of the case, was waiving the presentation of any countervailing evidence. When the court a quo sought to ascertain whether or not that was the real import of the submission by Prosecutor Abejo, the latter readily answered in the affirmative.

Yes, Your Honor.34 It is further evident from the foregoing that the prosecution, on the instructions of Regional State prosecutor Zozobrado, had no intention at all to oppose the motion for bail and this should be so notwithstanding the statement that they were "neither supporting nor opposing" the motion. What is of significance is the manifestation that the prosecution was "submitting (the motion) to the sound discretion of the Honorable Court." By that, it could not be any clearer. The prosecution was dispensing with the introduction of evidence en contra and this it did at the proper forum and stage of the proceedings, that is, during the mandatory hearing for bail and after the trial court had fully satisfied itself that such was the position of the prosecution.

The following exchanges bear this out: PROSECUTOR ERLINDO ABEJO: I was informed to appear in this case just now Your Honor. COURT: Where is your Chief of Office? Your office received a copy of the motion as early as October 28. There is an element of urgency here.

3. In Herras Teehankee vs. Director of Prisons,35 it was stressed that where the trial court has reasons to believe that the prosecutor's attitude of not opposing the application for bail is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court, in the interest of Justice, must inquire from the prosecutor concerned as the nature of his evidence to determine whether or not it is strong. And, in the very recent administrative matter Re: First Indorsement Dated July 21, 1992 of Hon. Fernando de Leon,Chief State Prosecutor, Department of Justice; Alicia A. Baylon, City Prosecutor of Dagupan City vs. Judge Deodoro Sison, 36 the Court, citing Tucay vs. Domagas, etc., 37 held that where the prosecutor interposes no objection to the motion of the accused, the trial court should nevertheless set the application for hearing and from there diligently ascertain from the prosecution whether the latter is really not contesting the bail application.

PROSECUTOR ABEJO: I am not aware of that, Your Honor, I was only informed just now. The one assigned here is State Prosecutor Perseverando Arena, Jr. who unfortunately is in the hospital attending to his sick son. I do not know about this but before I came I received an instruction from our Chief to relay to this court the stand of the office regarding the motion to admit bail. That office is neither supporting nor opposing it and we are submitting to the sound discretion of the Honorable Court. COURT: Place that manifestation on record. For the record, Fiscal Abejo, would you like to formally enter your appearance in this matter? PROSECUTOR ABEJO: Yes, Your Honor. For the government, the Regional State Prosecutor's Office represented by State Prosecutor Erlindo Abejo. COURT: By that manifestation do you want the Court to understand that in effect, at least, the prosecution is dispensing with the presentation of evidence to show that the guilt of the accused is strong, the denial . . . PROSECUTOR ABEJO: I am amenable to that manifestation, Your Honor. COURT: Final inquiry. Is the Prosecution willing to submit the incident covered by this particular motion for resolution by this court?

No irregularity, in the context of procedural due process, could therefore be attributed to the trial court here as regards its order granting bail to petitioner. A review of the transcript of the stenographic notes pertinent to its resolution of November 5, 1992 and the omnibus order of March 29, 1993 abundantly reveals scrupulous adherence to procedural rules. As summarized in its aforementioned order, the lower court exhausted all means to convince itself of the propriety of the waiver of evidence on the part of the prosecution. Moreover, the omnibus order contained the requisite summary of the evidence of both the prosecution and the defense, and only after sifting through them did the court conclude that petitioner could be provisionally released on bail. Parenthetically, there is no showing that, since then and up to the present, petitioner has ever committed any violation of the conditions of his bail. As to the contention that the prosecutor was not given the opportunity to present its evidence within a reasonable period of time, we hold otherwise. The records indicate that the Regional State Prosecutor's Office duly received its copy of the application for bail on the very same day that the it was filed with the trial court on October 28, 1992. Counted from said date up to the day of the hearing on November 5, 1992, the prosecution had more than one (1) week to muster such evidence as it would have wanted to adduce in that hearing in opposition to the motion. Certainly, under the circumstances, that period was more than reasonable. The fact that Prosecutor Gingoyon received his copy of the application only on November 6, 1992 is beside the point for, as already established, the Office of the Regional State Prosecutor was authorized to appear for the People. 4. What finally militates against the cause of the prosecutor is the indubitably unreasonable period of time that elapsed before it questioned before the respondent court the resolution and the omnibus order of the trial court through a special civil action for certiorari. The Solicitor General submits that the delay of more than six (6) months, or one hundred eighty-four (184) days to be exact, was reasonable due to the attendant difficulties which characterized the prosecution of the criminal case against petitioner. But then, the certiorariproceeding was initiated before the respondent court long after trial on the merits of the case had ensued in the court below with the active participation of prosecution lawyers, including Prosecutor Gingoyon. At any rate, the definitive rule now in that the special civil action for certiorari should not be instituted beyond a period of the three months,38 the same to be reckoned by taking into account the duration of time that had expired from the commission of the acts complained to annul the same.39

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

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 127126 September 17, 1998 People of the Philippines, plaintiff-appellee, vs. Rodrigo Calma y Sacdalan, accused-appellant.

That in between the period May 1995 to March 8, 1996, in Marilao, Bulacan and with the jurisdiction of this Honorable Court, the above-named accused, by taking advantage of his natural daughter, Four (4) year old Irene Calma, did then and there wilfully, unlawfully and feloniously with lewd designs, touched the private parts of the above-stated offended party. CONTRARY TO LAW.6 Accused-appellant pleaded not guilty to the charges.

PER CURIAM: On May 31, 1996, the three cases were jointly tried upon motion of the prosecution. This Court repeats: men who rape children, worse, their own daughters, are "filthier than the slime where they belong. Whatever punishment is imposed on them can never expiate their loathsome offense, for which forgiveness itself from a mortal court, at least, would be a sin".1 There is no fathoming the deluge of rape cases, often involving children, that has swamped the Court. But this particular case is by far, the most bizarre. Not just one but three young girls have been left precipitately stigmatized by the bestial violence perpetrated on them by their own father. The very person who should have protected them with his life, destroyed their. What strikes this Court as extremely perverse is that he spared no one, not even his daughter of the tenderest age of 5. Accused-appellant Rodrigo Calma was charged with two (2) counts of Rape under Art. 335 of the Revised Penal Code, as amended by Sec. 11 of Republic Act No. 7659, and one (1) count of Acts of Lasciviousness under Art. 336 of the Revised Penal Code in relation to Sec. 5(b) of Art. III of Republic Act No. 7610 2, before the Regional Trial Court, 3rd Judicial Region, Malolos Bulacan, Branch 143 in the following three (3) separate Informations: In Crim. Case No. 752-M-96, for Rape: The undersigned upon the prior sworn complaint of the offended party, fourteen (14) year old minor Annalyn Calma, accuses RODRIGO CALMA Y SACDALAN of Rape, defined and penalized under Art. 335 of the Revised Penal Code as amended by Sec. 11 of Republic Act [No.] 7659, committed as follows: That in between the period May 1995 to March 8, 1996, in Marilao, Bulacan and within the jurisdiction of this Honorable Court, the above-named accused, being the biological father of the offended party Annalyn Calma, with lewd designs and by means of threat and violence by arming himself with bladed weapon, did then and there willfully, unlawfully and feloniously lie and had sexual intercourse with private complainant Annalyn Calma against her will and consent. CONTRARY TO LAW.4 In Crim. Case No. 752-M-96, also for Rape: The undersigned upon the prior sworn complaint of the offended party, ten (10) year old minor Roselyn Calma, assisted by her mother Myrna Calma y Ignacio, accuses RODRIGO CALMA Y SACDALAN of Rape, defined and penalized under Art. 335 of the Revised Penal Code as amended by Sec. 11 of Republic Act [No.] 7659, committed as follows: That in between the period may 1995 to March 8, 1996, in Marilao, Bulacan and within the jurisdiction of this Honorable Court, the above-named accused, being the biological father of the offended party Roselyn Calma, with lewd designs, did then and there willfully, unlawfully and feloniously lie and had sexual intercourse with private complainant Roselyn Calma against her will and consent. CONTRARY TO LAW.5 In Crim. Case No. 754-M-96, for Acts of Lasciviousness: The undersigned upon the prior sworn complaint of Myrna Calma y Ignacio in behalf of her Four (4) year old daughter Irene Calma, the offended party, accuses RODRIGO CALMA Y SACDALAN of ACTS OF LASCIVIOUSNESS defined and penalized under Art. 336 of the Revised Penal Code, in relation to Section 5(b), Art. III of Republic Act [No.] 7610, committed as follows:

The evidence of the prosecution established that between May 1995 and March 8, 1996, accused-appellant forced himself on his two daughters, namely, Annalyn and Roselyn, born on July 11, 1981 7 and December 28, 1985 8, respectively. During the same period, accused-appellant inserted his finger into sex organ of his youngest daughter, Irene, born on June 29, 1991 9. At ages 15, 11 and 5 years, Annalyn, Roselyn, and Irene, respectively, testified thus: Annalyn on the witness stand: A. One day by the middle of May, 1995, my father arrived home drank [sic] and he forced me to undress myself while carrying an icepick. Q. But can you tell us the time? A. It was already night time, madam. Q. And where did this incident happened [sic]? A. In our bedroom, madam. Q. When you said that your father removed your panty and your short[s] and your father was only wearing his short[s] at that time, what did your father do to you if any? A. He asked me to lie down on the bed, madam. Q. And when you laid down on the bed, what happened next? A. He approached me pointing the icepick towards me, sir. Q. And then when he approached you, what happened next? A. He started to kiss me on the different parts of my body, madam. Q. Specifically what part of your body did he kiss first? A. My vagina, madam. Q. Did you not resist or cry or ask him the reason why he was doing that to you? A. I asked him, madam. Q. And what was his answer? A. None, madam. Q. And after your father kissed your whole body, your breast and including your vagina that was all he did to you? A. On that particular day, yes madam on that day only. Q. After that first incident, you did not tell anyone or anybody your mother and brother and your sister what your father did to you? A. I did not, sir. Q. Why? A. Because at the very start, he had already threatened us and he told us that he would kill our mother in our presence, madam. Q. And after that first incident in the middle of May, 1995, this act was never repeated again? A. It was repeated again, madam. Q. How many times? A. For many more times, madam. A. After a week time [sic] or something like that in as much as he seem[s] not to be satisfied he inserted his sex organ [in]to mine, madam. Q. Can you recall the first time your father inserted his penis inside your private parts? A. No more, madam. Q. You can not recall the exact date? A. I can no longer recall, madam. Q. Now, when you were left alone with your father, do you recall what happened if any? A. Yes, madam. A. First he took [sic] our main door and then he ordered me to get inside our bedroom, madam. Q. After he instructed you to get inside your bedroom, what happened next? A. He ordered me or instructed me to undress myself, madam. Q. Did you actually remove your clothes? A. Yes, madam because I was frightened then. Q. How about your father, what happened to his clothes then? A. He likewise removed his short pants, madam. Q. So, both of you were totally naked?

A. Yes, madam. Q. After you were both totally naked, did [sic] you kindly tell us what happened next? A. He instructed me to lie down on [the] bed, madam. Q. After you laid down on the [the] bed, what happened next? A. He placed himself on top of me, madam. Q. And when he laid on top of you, do you recall what happened next? A. Yes, madam. Q. What was that? A. He was making a push and pull motion, madam. Q. When you say that he was likewise making this push up motion, did you notice anything else? A. He inserted his penis on [sic] my vagina, madam. Q. How do you know it was his penis that was inserted on [sic] your vagina? A. Because I saw it, madam. Q. When he inserted his penis inside your vagina, what did you feel? A. I cried because it was painful, madam. Q. Did you resist or fought [sic] back to [sic] what your father was doing to you? SP BALAWAG: Q. What did you do if any? A. I cried and cried and when I was struggling to free myself, he pointed again the icepick on [sic] me, madam. Q. And can you tell us for how long did this push up movements [which] your father was doing while his penis was inserted in your vagina lasted [sic].? A. For less than five (5) minutes, madam. Q. After that what happened? A. He stood up and seated himself on top of the bed, madam. Q. What did you see when your father suddenly stood [sic] up and sit on top of the bed? A. He took hold and played with his sex organ or penis, madam. Q. After playing [with] his sex organ, what happened next? A. Something came out of his penis, madam. Q. Would you kindly describe to us what you saw coming our from his penis? A. A sticky substance, madam. Q. Why do you know that this sticky substance came out from the penis of your father? A. Because he was showing that to me, madam. He even told me that substance was the one introducing [sic] baby, madam. Q. And after this first sexual abuse committed by your father on you, you never relayed this incident to anyone? A. Yes, madam I did not. Q. Why was this? A. As I have stated a while ago, he was threatening us. He was threatening me and he further stated that will include my mother and even my other sister and brother, madam. Q. You stated earlier that this sexual abuse was repeatedly done by your father? A. Yes, madam. A. When my mother was not yet around whenever he likes it. Q. During the time that you have or you were repeated raped or your father have [sic] sexual intercourse with you, will you kindly tell us the positions your father did? A. Sometimes I am lying on my back. Sometimes I am on my side that is all. SP BALAWAG: Q. In all those instances that you were repeatedly abused by your father notwithstanding the return of your mother, you never told anyone what was [sic] your father was doing to you? A. I did not, madam. Q. Why? A. Because I am afraid of his threat and I love very much my family. Q. Now, madam witness, do you recall the last time when your father sexually abused you? A. Yes, madam. Q. When was that? A. March 3, Sunday in the morning 1996, madam. Q. In other words, madam witness since the middle of May, 1995, up to March 3, 1996, this sexual abuse committed by your father lasted up to one (1) year? A. Yes, madam. 10 Roselyn on the witness stand: Q. Can you tell us, Madam Witness, what grade were you in and how old were you at the time you were first sexually molested by your father? A. I was then in Grade 2 and I was only 8 years old then, madam. Q. In other words, Madam Witness, the first time you were sexually abused by your father, you were left alone with him? A. Yes, madam. Q. And you also mentioned earlier that you were first sexually abused by your father in your living room, can you tell us who brought you there in the living room? A. It was he, madam. Q. Now, when your father or the accused led you in the living room of your house alone and you were alone with him, can you recall what happened, if any?

A. First, he instructed me to remove my shorts but I didn't want and what he did is that he pointed an ice pick to [sic] me, madam. Q. When you refused at first to remove your shorts and then the accused pointed an ice pick at you, can you recall what happened next? A. It was he who removed my shorts, madam. Q. In what particular part of pour body was the ice pick pointed? A. On my neck, madam. . . . Q. After your father removed your shorts, what happened next, if any? A. He brought out his sex organ from his short, he lifted up one of my feet and make [sic] me lie down on my back and he placed himself on top of me, madam. Q. What part of your leg was raised at that time? A. My right leg, madam. Q. In other words, while you were lying down, the accused lifted your right leg and then he went on top of you? A. Yes, madam. PROS. BALAUAG: Q. What happened next after your father laid on top of you? A. He was actually making a push and full [sic] motions [sic] (kinakabayo). PROS. BALAUAG: Q. Now, after your father went on top of you, what did he do next, if any and made [sic] that "kinakabayo"? A. He pulled out his sex organ and then played with it, madam. Q. Where did he pulled [sic] out his sex organ? A. From my sex organ, madam. Q. In other words, madam Witness, your father inserted his sex organ or penis in your vagina? A. Yes, madam. Q. Can you tell what you felt at that time while the penis of your father was inserted in your vagina? A. It was painful, madam. Q. Did you not tell him about it? A. I told him about that, madam. Q. What was his responds [sic]? A. None, madam. Q. After your father pulled out his sex organ or his penis, can you recall what happened next or what did he do with it, if any? A. After my father had pulled out his sex organ from my sex organ he played with it and something whity [sic] substance came out, madam. Q. Did you actually see that whity [sic] substance coming out from your father's penis? A. Yes, madam, because he was then in front of me. Q. Now, did you not tell anyone of what had happened to you? A. I did not, madam. Q. Why not, madam witness? A. I am afraid, madam, because he told me that if I do so, he would kill my mother. Q. Now, the second time you were sexually abused by your father, can you tell us where did it happen? A. In the same hut, madam. Q. In what particular portion of the house? A. Also, in the living room, madam. Q. Now, you mentioned earlier that the second time you were sexually abused by your father, it happened in the living room, can you tell us what your father did to you at that time? A. The same as in the first occasion, he instructed me to remove my clothes, madam. Q. In other words, madam witness, what you are trying to say to us right now was that the second time you were sexually abused by your father, it was like the first incident when you were sexually abused? A. Yes, madam. A. The same as in the first occasion when I was abused by my father. He first brought out his sex organ from his shorts and then allowed me to lie down on my back, then raised my right leg and then he inserted his sex organ to [six] my sex organ, madam. Q. When was that, the last time you were sexually abused by your father? A. March 8, 1996, madam, because after that date it was then the birthday of my father. Q In other words, the birthday of the accused is March 9. A. Yes, madam. A. I was about to place my bag inside that bedroom and I have to change clothes while my father followed me inside. Q. Madam Witness, where did you came [sic] from on that particular date? A. I came from school, madam. Q. When your father followed you inside the bedroom, can you recall what happened next, if any? A. Yes, madam. Q. What happened? A. He instructed me to lie down on my back and instructed me further to remove my shorts, madam. Q. Did you obey his orders? A. No madam, I did not.

Q. What happened next when you refused to removed [sic] your shorts? A. He pointed an ice pick to [sic] me, madam. Q. The same ice pick he pointed at you on the first occasion you were sexually abused by your father? A. No madam, it is different. Q. How can you tell that it was a different ice pick that he used? A. I said that it was different ice pick because the first ice pick he used on me before, I kept it away, so what he did, he made another ice pick which is quite longer. Q. Did you actually see your father making that particular ice pick? A. Yes, madam. Q. Now, after your father placed some oil in [sic] his penis, what did he do next, if he did anything? A. He lifted again one of my legs and then placed himself on top of me, madam. Q. In other words, madam witness, the third time you were sexually abused by your father, he lifted again your right legs [sic] but this time he put some oil in [sic] it before he inserted it in your vagina? A. Yes, madam. Q. And after inserting his penis inside your vagina, what happened next, if any? A. He removed his sex organ or pulled out his sex organ and then played with it and sticky substance came out of it. 11 Irene on the witness stand: PROS. AGARAN: Q. Irene, kilala mo ba si Mama? A. Opo. Q. Si Papa kilala mo rin? A. Opo. Q. Irene, mahal mo ba si Mama? A. Opo. Q. Eh, si Papa, mahal mo rin ba? A. Hindi na po. Q. Bakit hindi mo na mahal si Papa? A. Kasi po ang kamay niya ay pinapasok sa penching ko. Q. Pakituro mo nga kung ano 'yong sinasabi mong penching? AT THIS JUNCTURE, THE WITNESS IS CRYING AND WITNESS [IS] TOUCHING HER SEX ORGAN. Q. Ano 'yong kamay na ipinapasok doon sa penching mo, sabihin mo nga anak kung ano 'yon? Nasaan 'yong daliring sinasabi mo, ituro mo kung anong daliri and ipinasok ng iyong Papa sa penching mo? WITNESS TOUCHING HER RIGHT AND MIDDLE FINGER. Q. Nasaan kayo pagka pinapasok ni Papa yong daliri niya sa penching mo? A. Nasa kama po. Q. Anong suot mo pag nasa kama kayo tapos pinapasok ni Papa 'yong daliri niya sa penching mo? Nasaan ka? A. Nasa amin po. Q. Saan 'yon amin na sinasabi mo, Irene saan anak? PROS. AGARAN: The witness is now crying, your Honor. ATTY. JOSON: Scratching only, your Honor. PROS. AGARAN: Q. Pag ipinapasok ang daliri ni Papa sa penching mo, ano ang nararamdaman mo? A. Masakit po. Q. Maliban sa pagpasok ng daliri ng Papa sa penching mo, ano pa ang ginagawa sa iyo? A. No answer. PROS. AGARAN: She refused to answer, your Honor, but she kept on crying. COURT: Q. Bakit ka umiiyak? Hindi naman kami nagagalit sa iyo. PROS. AGARAN: Q. Meron ka bang pinagkuwentuhan ng ginawa ng Papa mo ang pagpasok sa penching mo? A. Wala po. Q. Kahit kanino? A. Wala po. Q. Kay Mama, hindi mo kinuwento kay Mama? A. Hindi po. Q. Bakit hindi mo kinuwento kay Mama? A. Eh, wala siya. Q. Nasaan si Mama noon nuong ipasok niya ang daliri niya sa penching mo? A. Kina Lola po. Q. Hindi na ha bumalik si Mama sa bahay? A. Bumalik po. Q. Eh, bakit hindi mo ikinuwento? A. Gabi na po. Q. Ibig mong sabihin pag gabi na si Mama natutulog ka na? A. Opo. Q. Wala kang talagang pinagkwentuhan? A. Wala po. Q. Hindi mo ikinuwento maski na kina Ate?

A. Kay Roselyn po. Q. Ano ang sinabi mo kay Ate Roselyn? PROS. AGARAN: The witness refused to answer, your Honor. That will be all for the witness, your Honor. COURT: Q. Ituro mo nga kung sino ang nagpapasok ng daliri sa penching mo? A. WITNESS POINTING TO A PERSON IN THE COURTROOM WHO STOOD UP AND GAVE HIS NAME AS RODRIGO CALMA. PROS. AGARAN: Q. Sino siya? A. Papa ko. COURT: Cross? ATTY. JOSON: Yes, your Honor. With the kind permission of this Honorable Court. COURT: Proceed. ATTY. JOSON: Q. Irene, is it not a fact that your mother and your father frequently quarrel with each other? A. Yes, sir. Q. And in fact, because of that frequent trouble your mother was angry [sic] to your father? A. Yes, sir. Q. And because your mother was angry she told you to testify against your father? PROS. AGARAN: Your Honor, at her age she is incompetent to testify on those matters. COURT: Let the witness answer. A. No, sir. Q. Considering that your mother did not instructed [sic] you to file action against your father, my question to you Irene is, who is the person who told you that something wrong was done to you by your father? A. None, sir. COURT: Q. Di ba natutulog ka nuong ilagay ang kamay niya sa penching mo? A. No, your Honor. Q. Anong naramdaman mo nong ilagay iyon? A. Painful, your Honor. Q. Ano pa? No answer. ATTY. JOSON: No further question, your Honor. 12 Accused-appellant denied his daughters' accusations. He charged that Myrna Ignacio, his common law wife and mother of his children, coached his daughters to lie. He claimed that he had seriously hurt her in the past, twice by electrocution on suspicion of infidelity. He also accused her of using the criminal cases to force him to waive his ownership rights over their house and lot in her favor. Seeking to help accused-appellant, his mother, Catalina Calma, his neighbor, Gloria Ceraus, his mother's laundrywoman, Eugenia Lontoc, his sister-in-law, Lolita Calma, family friend, Rosalie Ofrecio, and a confidante of Annalyn, Larry Laurora, attested to the close family ties of the Calmas. They testified that accused-appellant's daughters, especially Annalyn, showed much affection towards their father. Catalina Calma, Lolita Calma and Larry Laurora even insinuated that Annalyn was in love with her father and was seducing him. On September 25, 1996, the trial court convicted the accused on all three (3) charges. It ruled: The defense's position that the charges were fabricated and that the private complainants were coached is untenable. A teenage unmarried lass would not ordinarily file a rape complaint against anybody much less her own father if it were not true (People v. Matrimonio, 215 SCRA 613). A daughter, especially one of tender age would not accuse her own father of this heinous crime had she really not have been aggrieved (People v. Dusohan, 227 SCRA 87; People v. Magpayo, 226 SCRA 13). In their childhood innocence and naivete they could not have concocted the story of how they were wantonly ravished and sexually assaulted (see People v. Magallanes, 218 SCRA 109; People v. Joya, 227 SCRA 9). Neither is there no [sic] merit in the accused's argument that the abuses if true could not have been endured by the private complainants for almost a year without telling anyone. It is not uncommon for young girls to conceal for sometime the assaults on their virtue because of the rapist's threats on their lives. Delay or vaccilation in making a criminal accusation does not necessarily impair the credibility of the witness if such delay is satisfactorily explained (People v. Errojo, 229 SCRA 49 . . .). The fact that there was no outcry from the offended party is immaterial in the rape of a child below twelve years old (People v. Ylarde, 224 SCRA 405). Also, the precise date when

complainant was sexually abused is not an essential element of the offense (People v. Ocampo, 206 SCRA 223).

pay her the amount of P50,000.00 as moral damages, the amount of P25,000.00 as exemplary damages;

The defense also argues that there was no external evidence of the use of force. In the case of People v. Coloma it has held that "previous passivity of a daughter in allowing her father to have carnal knowledge of her for eight (8) years is not a valid defense against unconsented intercourse. The kind of force or violence, threat or intimidation as between father and daughter need not be of such nature and degree as would be required in other cases, for the father in this particular instance exercises strong moral and physical influence and control over his daughter (People v. Coloma, 222 SCRA 255). In a rape case committed by a father against his own daughter the father's moral ascendancy and influence over the latter substitutes for violence and intimidation (People v. Matrimonio, 215 SCRA 613).

In Criminal Case No. 753-M-96

It was held in People v. Ignacio, 233 SCRA 1, that courts may take judicial notice of the interesting fact that among poor couples with big families living in small quarters, copulation does not seem to be a problem despite the presence of other persons around them. Rape can be committed even if the victim is sleeping on the same bed with others (People v. Villorente, 210 SCRA 647). Thus it was not impossible for the accused to commit the abuses on his daughters simply because they were sleeping on the same bed.

Finding the accused Rodrigo Calma y Sacdalan GUILTY beyond reasonable doubt of the [crime of] acts of lasciviousness under Article 336 of the Revised Penal Code and R.A. [No.] 7610, and sentencing him to the penalty of reclusion temporal in its medium period, to indemnify Irene Calma in the amount of P50,000.00, to pay P50,000.00 as moral damages and P25,000.00 as exemplary damages.

It was also argues [sic] that the extent of the injuries sustained by the two younger complainants are not enough to support the charges. Suffice it to say that healed lacerations in the hymen do not negate rape; neither does the absence of spermatozoa in the vaginal canal (People v. Liquiran, 228 SCRA 62; People v. Magallanes, 218 SCRA 109). Even if there were no lacerations of the hymen this fact alone does not necessarily mean that there was no rape. The merest introduction of the male organ into the labia of the pudendum is sufficient. The mere penetration of the penis by the entry thereof into the labia majora of the female organ even without rupture of the hymen suffices to warrant a conviction for rape (People v. Sanchez, 250 SCRA 14). Annalyn and Roselyn testified that there was penetration and that it was very painful. The pain could be nothing but the result of penile penetration, sufficient to constitute rape (People v. Sanchez, supra). The mother of the accused, as well as his sister-in-law imply (sic) that an amorous relationship could exist between the accused and Annalyn, and such is one of the theories of the defense. However, where the accused adopted the theory that the victim consented to his sexual desires, the sexual act itself is deemed admitted except as to consent [but] . . . as contrary evidence showed the victim sustained physical injuries consistent with her claim that she was sexually abused without her consent (People v. Saluna, 226 SCRA 447). The charge that the complainant in a rape case has loose morals must be supported by strong evidence (People v. Coloma, 222 SCRA 255). Such a claim could only lead this court to believe that the defense would try to exculpate the accused by blaming the victim, which this court is not inclined to do. The accused imputes false motive in the filing of these case[s] on the part of Myrna. It is unnatural for a parent to use her offspring as an engine of malice, especially if it will subject a daughter to embarrassment and even stigma (People v. Ching, 240 SCRA 267; People v. Ignacio, 233 SCRA 1). No mother would stoop so low as to subject her daughter to physical hardship and shame concommittant to a rape prosecution just to assuage her own hurt feelings (People v. Rejano, 237 SCRA 627). A violation of a woman's chastity becomes doubly repulsive where the outrage is perpetrated on one's own flesh and blood, for the culprit is reduced to a level lower than a beast (People v. Dusohan, 227 SCRA 87). Because of the acts of the accused the private complainants have been denied their right to grow up and discover the wonders of womanhood in the natural way, and an award of moral indemnification in the amount of P50,000.00 is proper (People v. Escoto, 229 SCRA 430; People v. Mejorada, 224 SCRA 857), as well as an award of exemplary damages as correction for the public good (People v. Matrimonio, 215 SCRA 613), in the amount of P25,000.00. 13 Accordingly, accused-appellant was meted out the following penalties: WHEREFORE, premises considered, judgment is hereby rendered: In Criminal Case No. 752-M-96 Finding the accused Rodrigo Calma y Sacdalan GUILTY beyond reasonable doubt of the crime of rape and sentencing him to the penalty of death to be carried out in accordance with law; and to indemnify Annalyn Calma in the amount of P50,000.00, to

Finding accused Rodrigo Calma y Sacdalan GUILTY beyond reasonable doubt of the crime of rape and sentencing him to the penalty of death to be carried out in accordance with law; and to indemnify Roselyn Calma in the amount of P50,000.00, to pay her the amount of P50,000.00 as moral damages and the amount of P25,000.00 as exemplary damages; and In Criminal Case No. 754-M-96

SO ORDERED. 14 On automatic appeal because of its twin sentences imposing the death penalty, the foregoing decision of the trial court is now before us. In his Brief dated October 21, 1997, accused-appellant interposed a single error, thus: THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIMES CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILTY BEYOND REASONABLE DOUBT. 15 We find on record overwhelming evidence of the guilty of accused appellant. The testimony of the three victims, his own daughters, withstood the test of crossexamination. They spontaneously, clearly and credibly spoke of the details of their defilement. The defense did not dispute the time, the place, the manner and the frequency of the sexual abuses. Neither did the defense show that their hymenal lacerations, as found by Dr. Jesusa Nieves Vergara, the medico-legal officer who examined them, were the results of other causes. Dr. Vergara testified, thus: xxx

xxx

xxx

Q. At around 11:30 in the morning of that day, do you recall having physically examine [sic] the person[s] of Roselyn Calma, Irene Calma and Annalyn Calma? A. Yes, sir. SP BALAUAG: Q. You stated that you conducted a physical examination on the person of Annalyn Calma on May 3, 1996, is [sic] the findings of your examination was [sic] also reduced in writing? A. Yes, madam. Q. I am showing to you medico legal report No. M-647-96, what relation has this medico legal report to the one you stated you executed? A. This is the original medico legal report No. M-647-96 which I prepared. Q. We are marking the same as our Exhibit K, and that the signature of Dr. Vergara be bracketed and be marked as Exhibit K-1. . . . You stated in your genital findings that "on separating the same disclosed an elastic, fleshy-type hymen with shallow healed lacerations at 3 and 5 o'clock and deep healed lacerations at 8 and 9 o'clock positions." [I]n layman's language, can you tell us wat this [sic] genital findings means [sic]. A. The numbers here, 3, 5, 8 and 9 o'clock will just indicate the positions of the lacerations. So, since the hymen is circular in appearance, it is being correlated to the face of the watch when we say the laceration is 3:00 o'clock, it means that the laceration or it occupies the number in the clock. The same goes with the 5, 8 and 9 o'clock. By shallow laceration, it means that it does not exceed more than 50% or more than half of the width of the hymen and by deep laceration, it exceed [sic] more than 50 % or more than 1/2 of the width of the hymen and by healed laceration, it means that the edges of the laceration has already healed showing reaction like swelling, redness or contusion on the area. SP Balauag: Q. You concluded in your conclusion that the subject is in non-virgin state physically. Can you kindly explain how you were able to conclude that the subject is in a nonvirgin state? A. The findings in the hymen is [sic] a healing laceration.

Q. Dr., can you tell us what might have cause [sic] this laceration in the hymen you found on [sic] Annalyn Calma? A. Forcible entry of a hard blunt object. COURT: Q. What was the cause of your conclusion or findings that the victim is no longer a virgin? A. Forcible entry of a hard blunt object can be caused by an insertion of a male sex organ. SP BALAUAG: Q. On May 6, 1996, did you examine the person of Rosallyn [sic] Calma? A. Yes, madam. Q. After conducting your physical examination was [sic] your findings reduced into writing? A. Yes, madam. Q. [Let] the signature over the typewritten name Jesusa Vergara be bracketed and be marked as our Exhibit L-1 . . . . You stated in your findings that on the genital [area]: There is absence of pubic hair. Labia majora are full, convex and gaping with th [sic] pinkish labia minora presenting in between. On separating the same disclosed an elastic, fleshy-type hymen with shallow healed lacerations at 3 and 9 o'clock positions. External vaginal origice [sic] admits tip of the examiner's smallest finger." Now in layman's language, Doctor, can you tell us what this [sic] gental findings means [sic]? A. That I found two (2) lacerations on the hymen, positions 3 and 9 o'clock positions. [B]oth lacerations were shallow healed lacerations. Q. Now, Doctor, there appears a conclusion [where] you said [in the] medico legal report that the subject is in a non-virgin state physically, can you tell us the basis of your conclusion? A. The basis for saying this is my findings on the hymen revealing the healed lacerations. Q. This laceration you found on the hymen [of] the private complainant Rosallyn [sic] Calma, can yoy [sic] inform this Honorable Court what or [sic] might have cause [sic] the said lacerations? A. Forcible entry of a hard blunt object which can be a form of an erected sexual organ. Q. On May 3, 1996, do you remember having physically examine [sic] the person of Irene Calma? A. Yes, madam. Q. Was [sic] your findings after you physically examine [sic] the person of Irene Calma reduced into writing? A. Yes, madam. Q. I forgot, we are marking the findings of the doctor as Exhibit L-3, your Honor for purposes of identification we are marking the medico legal report 649-M-96 as our Exhibit M and the signature over the typewritten name Dr. Jesusa Vergara be bracketed and he marked as our Exhibit M-1. . . . Doctor, in this [sic] findings regarding the four year old private complainant Irene Calma you stated in your findings that there are lacerations found in the hymen of the four (4) year old child, can you tell us in layman's language what this means? A. In this particular case, there were two (2) lacerations noted on the hymen of the victim. [B]oth were healing lacerations one shallow healing laceration 3 o'clock and another, deep laceration position 3 o'clock. Q. Can you tell us the basis of your conclusion that the victim Irene Calma is also [in] a non-virgin state? A. My basis for saying this [is] the findings on the hymen revealing lacerations. Q. In this particular case where the victim or the private complainant is four years old, will you tell us what might have caused the laceration you found in the hymen of Irene Calma? A. Forcible entry of a hard blunt object. 16 At most, during cross-examination, the defense got Dr. Vergara to concede that hymenal lacerations can also be caused by a fall on a sharp object. The defense, however, failed to establish that the three victims had, on specific occasions, met an accident of that nature. Thus goes the cross-examination of Dr. Vergara: ATTY. JOSON: Q. Madam witness, . . . you stated that that [sic] . . . the healed laceration might be caused by a blunt instrument or an erected adult penis. Now, madam witness, aside from adult male penis, what other factor that might caused [sic] lacerations in the hymen which falls under the category of a hard blund [sic] object? A. Insertion of the finger provided that diameter of the finger is greater than the diameter of the opening of the vagina, [sir]. Q. Can it be the finger of the subject person herself? I withdraw that. Q. In fact, aside from the erected male penis, finger, what are the other factors or things that might cause laceration in the hymen? A. A fall against a hard sharp object, sir. Q. Doctor, is it possible considering the young age of the subject person by strenuous exercise and activities may the same caused [sic] laceration of the hymen? A. No, sir there has to be a direct trauma on the hymen, sir. Q. How about riding on a bicycle? A. No, sir.

Q. Doctor, you also stated healing laceration, from the time of the examination what is the probable time or what is the period of time wherein you can still consider a laceration a healing laceration? A. Less than seven (7) days per examination, sir. Q. To be considered a healed laceration, the examination must be conducted within seven days? A. More than seven (7) days. Q. Healing laceration? A. For healed laceration, it should be more than seven (7) days, for heal[ing] lacerations less than seven (7) days. COURT: Q. Doctor, can you determine Dr. when was the actual date wherein the victim lost their virginity? A. For the exact date, I can not determine but I can only approximate, but my findings are compatible per their allegations that the incident happened a year [before my examination]. 17 Accused-appellant next submits that the evidence of the prosecution should not be given credence by this Court because of their inherent improbabilities. He pleads this Court to consider his daughters to have lied under oath because: 1. Annalyn and Roselyn both testified that he always withdrew his penis and ejaculated outside them, but such self-control and willpower is impossible for a man who lusted even for his own daughters.18 2. His daughters did not behave like rape victims. They continued to be close and affectionate towards him, hugging and kissing him in public. They always slept together in one room. They continuously attended their classes and even got high grades. 19 3. His daughters should have died or suffered some serious physical injury if it were true that his penis forcefully penetrated their vaginas. 20 All these, accused-appellant submits, cast reasonable doubt on his guilt. The Law presumes that an accused is innocent and this presumption stands until it is overturned by competent and credible proof. It is incumbent upon the prosecution to establish the guilt of the defendant beyond a reasonable doubt. The reasonable doubt should necessarily pertain to the facts constitutive of the crime charged. 21Discrepancies that touch on significant facts are crucial on the guilt or innocence of an accused. 22 Conversely, inconsistencies and discrepancies in details which are irrelevant to the elements of the crime are not grounds for acquittal. 23 The rule of falsus in uno, falsus in omnibus has never been regarded as positive, mandatory, or inflexible. 24 Surmises and conjecture have no place in a judicial and are especially anathema in a criminal prosecution. 25 In a criminal prosecution a reasonable doubt can be created by many things but to be sufficient to prevent a conviction, it must arise from the evidence adduced or from the lack of evidence, and can arise from no other legitimate source. 26While no test definitively determines which is and which is not considered reasonable doubt under the law, it must necessarily involve genuine and irreconcilable contradictions based, not on suppositional thinking, but on the hard facts constituting the elements of the crime. It is not mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. 27 It should not be vague, speculative or whimsical, but intelligent, reasonable and impartial and based on a careful examination and conscious consideration of all the evidence in the case. 28 A reasonable doubt is not such doubt as any man may start by questioning for the sake of a doubt; nor a doubt suggested or surmised without foundation in facts or testimony, for it is possible always to question any conclusion derived from testimony, but such questioning is not what is reasonable doubt. Rather, it is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the judge in that condition that he cannot say that he feels an abiding conviction to a moral certainly of the truth of the charge. 29 Absolute certainty is not demanded by the law to convict of any criminal charge but moral certainty is required, and this certainty must attend every proposition of proof requisite to constitute the offense. 30 Absolute, mathematical, or metaphysical certainty is not essential, and besides, in judicial investigation, it is wholly unattainable. Moral certainty is all that can be required. In the instant case, accused-appellant exhorts this court to consider the lack of internal ejaculation and the absence of any injury on the part of the victims, which were testified to by the prosecution witnesses themselves, and their continuous show of affection towards their father, as testified to by the defense witnesses, as indicia of

reasonable doubt warranting his acquittal. They lied, argues accused-appellant, because their testimony is improbable, if not impossible, and their affectionate behavior towards him, their alleged rapist, was a contradiction in terms.

P75,000.00 in accordance with the latest jurisprudence 39 on the matter. Accusedappellant RODRIGO CALMA Y SACDALAN is hereby sentenced: In Criminal Case No. 752-M-96

We agree with the Solicitor General that these contentions are conjectural. On the charge that the narrations of the victims were fabricated for the purpose of evading the questions as why no spermatozoa was found in them during the physical examinations and why they did not get pregnant, the Solicitor General correctly noted that Annalyn and Roselyn were last sexually abused by appellant in March 1996 while the physical examination were conducted on May 3, 1996 or almost two (2) months thereafter. Hence, even assuming that he ejaculated while they had intercourse, the spermatozoa would have been washed off by May 3, 1996, not to mention that the lifetime of spermatozoa definitely does not run to two (2) months. In any event, the presence or absence of spermatozoa in the vagina is not even determinative of the commission of rape because a sperm test is not a sine qua non for the successful prosecution of a rape case. 31 The important element in rape is penetration of the pudenda and not emission of seminal fluid. 32

To the penalty of death to be carried out in accordance with law; and to indemnify Annalyn Calma in the amount of P75,000.00, and to pay her the amount of P50,000.00 as moral damages and P25,000.00 as exemplary damages; In Criminal Case No. 753-M-96 To the penalty of death to be carried out in accordance with law; and to indemnify Roselyn Calma in the amount of P75,000.00, and to pay her the amount of P50,000.00 as moral damages and P25,000.00 as exemplary damages; and In Criminal Case No. 754-M-96

The Court is also not impressed by accused-appellant's claim that he could not have raped Annalyn and Roselyn because they continued to be close to him, i.e., they still hugged and kissed him in public and continued to sleep with him in one room. They were also allegedly able to continue attending their classes and obtain good grades at the time they were supposedly molested by him. It was Catalina Calma, mother of accused-appellant, who testified about Annalyn's and Roselyn's supposed show of affection towards him and their supposed normal life during that trying period. But Catalina's testimony is hard to believe. Annalyn herself testified that at that time, she was cutting classes and in school, her classmates saw her crying at the library. 33 Roselyn, on her part, testified that she was greatly bothered by what appellant had done to her and after the case was filed, she felt at peace and was able to continue with her studies. 34 There is also nothing commendable in accused-appellant's contention that the forceful insertion of a normal-size adult male penis into the vagina of girls of victims' ages would have required hospitalization and medical attention. Again, we sustain the Solicitor General's argument that full penetration of the vagina is not necessary to constitute the consummated crime of rape. It is settled that the mere entry of the penis into the labia majora of the female organ even without rupture of the hymen, suffices to warrant a conviction of rape. 35 The arguments of accused-appellant are premised on the misconception that reasonable doubt is anything and everything that removes a statement from the matrix of certitude. Were we to agree with him and treat every unlikely or uncommon trait characterizing a person, each strange or unusual event in the occurrence of a crime, or just any unexplained, irregular or dysfunctional behavior on the part of the accused or his victims, as basis for reasonable doubt, no criminal prosecution would prevail. It bears repeating that even inconsistencies and discrepancies in the prosecution evidence, unless treating of the elements of the crime, would not necessarily bring about a judgment of acquittal. In this case, there is not even any inconsistency or discrepancy to speak of. Accused-appellant denied criminal liability by simply insisting that his daughters, with coaching from their mother, lied on the witness stand. But during cross examination, they never flinched in their testimony. They spoke in simple, direct words customary of children of their ages, and they maintained their testimony amidst warnings 36 by the court and the defense counsel that their father may meted out the death penalty if found guilty of the crimes that they were charging him with. Significantly, their testimony was corroborated by the medical findings of vaginal lacerations on all three victims and their non-virgin state. 37 Neither may any of the defense evidence be attributed with having materially negated the positive testimony of accused-appellant's daughters regarding their defilement in the hands of their father. The defense witnesses may have testified that they remained affectionate towards their father and continued to earn high grades in school, but they denied these statements and statements and countered that they had cut classes and were sometimes seen crying in the library by some of their classmates. 38 All things considered, we find the evidence against the accusedappellant established his guilty beyond reasonable doubt. WHEREFORE, the appeal is HEREBY DENIED, and the judgment of conviction rendered by the Regional Trial Court, 3rd Judicial Region, Malolos Bulacan, Branch 14, finding Rodrigo Calma y Sacdalan guilty beyond reasonable doubt for two (2) counts of Rape under Art. 335 of the Revised Penal Code, as amended by Sec. 11 of Republic Act No. 7659, and one (1) count of Acts of Lasciviousness under Art. 336 of the Revised Penal Code in relation to Sec. 5(B) of Art. III of Republic Act No. 7610, is AFFIRMED with the slight modification that the civil indemnity in each of the three offenses is increased to

To the penalty of reclusion temporal in its medium period; and to indemnify Irene Calma in the amount of P50,000.00, and to pay P50,000.00 as moral damages and P25,000.00 as exemplary damages. Four (4) Members of the Court, although maintaining their adherence to the separate opinions expressed in People v. Echegaray 40 that R.A. No. 7659 insofar as it prescribes the penalty of DEATH is unconstitutional, nevertheless, submits to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should accordingly be imposed. In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power. No pronouncement as to costs. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur.

EN BANC G. R. No. 128823-24 December 27, 2002 PEOPLE OF THE PHILIPPINES, accused-appellee, vs. PEDRO FLORES, JR., y FLORES ALIAS "PESIONG", accused-appellant. DECISION CARPIO-MORALES, J.: An assault on sexual innocence can open a floodgate of emotions. This Court, however, cannot allow emotions to drown an accused’s right to be informed of the nature and cause of the accusation against him. For automatic review before this Court is the Joint Decision of the Regional Trial Court, Branch 46, Urdaneta, Pangasinan finding accused-appellant Pedro Flores Jr. y Flores alias "Pesiong" guilty of two counts of rape of his then 11 year old daughter and sentencing him to suffer the penalty of death in each. The complaints against accused-appellant filed on February 3, 1997 read as follows: Criminal Case No. U-9184: CRIMINAL COMPLAINT1 The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a resident of Sitio Buenlag, Brgy Nancamaliran West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y FLORES for the crime of "RAPE", committed as follows: That on the 9th day of December 1996, in the morning at Sitio Buenlag, Brgy. Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there, willfully, unlawfully, criminally and feloniously sexually abuse the herein complaining witness FILIPINA FLORES Y LAZO, 11 years old, all against her will. x x x (Emphasis supplied).

West, Urdaneta, Pangasinan, their mother Marcelina L. Flores having departed for Singapore to work as an overseas contract worker. After partaking of supper on the night of December 9, 1996,4 accused-appellant asked Filipina to accompany him to the comfort room situated outside their house,5 claiming that he was afraid of ghosts.6 Albeit Filipina did not believe7 him, she acquiesced because her mother had told her to always obey her father.8 When accused-appellant came out of the comfort room, he ordered Filipina to remove her short pants, threatening her with death if she disobeyed,9 and made her lie down.10 He then removed his short pants and brief and, against her will, he inserted his finger and later his penis into Filipina’s vagina11 where she later felt hot fluid.12 Accused-appellant thereafter wiped Filipina’s vagina and his hand, threatened to kill her if she reported what he did, directed her to put on her shorts, and they both went home. The following morning, Filipina reported the incident to her "Inang Lorie" whose full name is Norielyn Antonio, the aunt of her mother, who told her that if her father would sexually assault her again, he would have him detained. Nineteen nights later or on December 28, 1996, as Filipina lay asleep in their house, she was awakened when accused-appellant touched her right foot.13 Armed with a knife14, accused-appellant told her not to talk15 and ordered her to remove her short pants and panty. She complied. Accused-appellant thereupon removed his short pants and brief and went on top of her chest during which she tried to push him away but failed. Accused-appellant then inserted his finger into Filipina’s vagina for some time,16 wiped his hands, and then inserted his penis for a long time as he was sucking her breast. Filipina felt accused-appellant’s semen drop into her private organ where she noticed the presence of blood and a bit of whitish substance. Accused-appellant later wiped her vagina with a towel. The following morning, private complainant again reported the matter to her grandaunt Norielyn,17 and to her playmate Carla Salvador.18 On January 31, 1997, Filipina, accompanied by Norielyn, a relative, and a tricycle driver-neighbor, reported the matter to the Philippine National Police of Urdaneta where she gave a statement. On the same day, she, still accompanied by Norielyn, submitted herself to a medical examination at the Don Amadeo J. Perez, Jr. Memorial General Hospital the results of which are contained in a medical certificate19 showing the following:

Criminal Case No. U-9185: (-) Negative menarche CRIMINAL COMPLAINT2 - Multiple deep healed lacerations all over the labia majora. The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a resident of Sitio Buenlag, Brgy. Nancamaliran West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y FLORES, ALIAS "PESYONG", committed as follows:

- Admits examining finger with ease. - (+) sticky whitish discharge.

That on the 28th day of December 1996, in the evening at Sitio Buenlag, Brgy Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and by means of force and intimidation, did then and there, willfully, unlawfully, criminally and feloniously sexually abuse the herein complaining witness FILIPINA FLORES, an 11 years old and daughter of the herein accused with the use of sharp pointed bladed weapon and all against her will. x x x (Emphasis supplied). Arraigned on February 10, 1997, accused-appellant pleaded not guilty to both charges.3 Culled from the records of the case are the following facts established by the prosecution: On December 5, 1996, private complainant Filipina L. Flores (Filipina), 11 years old at the time, and her younger sister Catherine were left to the care of their father, herein accused-appellant, at their family residence in Sitio Buenlag, Barangay Nancamaliran

Dr. Jeanna B. Nebril, the examining physician, found the presence of "deep-healed lacerations all over the labia majora"20 which deep-healed lacerations connote, according to the doctor, the application of force, possibly two weeks before the examination. Denying the accusations, accused-appellant claimed as follows: Filipina, whom he whipped in the afternoon of December 9, 1996 for not attending school on the 6th, 7th and 8th of December that year and for having received money from her classmate,21 was not in their house on the night of December 9, 1996 because she was in the house of Norielyn. Neither was she in their house on the night of December 28, 1996 as she was at the house of his mother Margarita Flores 22 in Cafloresan. Accused-appellant’s testimony was corroborated by his mother Margarita, and his teenaged children Benito and Baby Jean Flores who were staying in his mother’s house. It was also corroborated by another teenaged child, Jocelyn Flores, who was staying in the house of accused-appellant’s mother-in-law, Lourdes Lazo, also in Barangay Nancamaliran West.23 Jocelyn added that Filipina had intimated to her that

she fabricated the rape charges because their maternal grandmother Lourdes wanted their father, accused-appellant, jailed as he begrudged him for having eloped with their mother,24 and that Lourdes threatened her with abandonment or detention in jail in case she defied, and promised to give her jewelry, shoes and dress if she agreed to carry out her desire. After trial, the court a quo found accused-appellant guilty of Statutory Rape and sentenced her to death in both cases in its April 7, 1997 Joint Decision, the dispositive portion of which reads: WHEREFORE, JUDGMENT is rendered CONVICTING PEDRO FLORES, JR. Y FLORES ALIAS PESIONG beyond reasonable doubt of the crime of Statutory Rape, an offense defined and penalized under paragraph 3, Article 335, of the Revised Penal Code in relation to Section 1, Republic Act 7659 aggravated by relationship, the Court sentences, PEDRO FLORES, JR. Y FLORES ALIAS PESIONG as follows: CRIMINAL CASE NO. U-9184 – to suffer the penalty of DEATH; ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all the necessary penalties and costs. CRIMINAL CASE NO. U-9185 – to suffer the penalty of DEATH; ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all the necessary penalties and costs. Pedro Flores, Jr. y Flores alias Pesiong shall be committed immediately to the National Bilibid Prisons. The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the Honorable Supreme Court of the Philippines for automatic review of this Decision. In view of the penalty of death imposed by the court a quo, the case is now before this Court on automatic review. Accused-appellant assigns as errors the following: I. THAT THE FILING OF THE CASE [AT BAR] WAS MOTIVATED BY SOME FACTORS OTHER THAN THE TRUTH AS TO ITS COMMISSION, AND SO THE ACCUSED SHOULD BE ACQUITTED. II. THAT THE COURT [A QUO] ERRED IN NOT APPRECIATING THE DEFENSE OF THE ACCUSED-APPELLANT THAT THE COMPLAINANT WAS NOT AT THE SCENE OF THE CRIME WHEN THE ALLEGED INCIDENTS TOOK PLACE, A DEFENSE SUFFICIENT TO OVERCOME AND DESTROY THE TESTIMONY OF THE COMPLAINANT THAT WOULD HAVE WARRANTED THE ACQUITTAL OF THE ACCUSED-APELLANT. It is settled that in a criminal case, an appeal throws the whole case open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors or not.25 It is at once apparent, from a reading of the above-quoted complaints, that accusedappellant was denied the constitutional right to be informed of the nature and cause of the accusation against him. This right has the following objectives: 26 1. To furnish the accused with such a description of the charge against him as will enable him to make the defense; 2. To avail himself of his conviction or acquittal for protection against further prosecution for the same cause; 3. To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. The right cannot be waived for reasons of public policy.27 Hence, it is imperative that the complaint or information filed against the accused be complete to meet its objectives. As such, an indictment must fully state the elements of the specific offense alleged to have been committed.28 For an accused cannot be convicted of an offense, even if duly proven, unless it is alleged or necessarily included in the complaint or information.29

The court a quo found accused-appellant guilty of Statutory Rape under Article 33530 of the Revised Penal Code, as amended by R. A. No. 7659 (which restored the death penalty for heinous crimes effective December 31, 1993) which provides: Article 335. When and how rape is committed.--- Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The gravamen of the crime of rape is carnal knowledge or sexual intercourse between a man and a woman under the circumstances enumerated in the penal code.31 Thus, to sustain a conviction, the complaint or information must allege that the accused had carnal knowledge of or sexual intercourse with the private complainant. In the criminal complaints at bar, however, no such allegation was made. The allegation that accused-appellant did "sexually abuse" Filipina does not suffice. In the recent case of People v. Lito Egan alias Akiao32, this Court ruled that "although the prosecution has proved that [the therein private complainant] Lenie was sexually abused, the evidence proffered is inadequate to establish carnal knowledge."33Hence, sexual abuse cannot be equated with carnal knowledge or sexual intercourse.34 The allegation in the instant criminal complaints that accused-appellant "sexually abuse[d]" the private complainant cannot thus be read to mean that accused-appellant had carnal knowledge or sexual intercourse with the private complainant. This Court is not unaware of the rule in case there is a variance between allegation and proof as etched in Section 4 of Rule 120 of the Revised Rules of Criminal Procedure which reads: SEC. 4. Judgment in case of variance between allegation and proof.—When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.35 The case at bar, however, is not one of variance between allegation and proof. The recital of facts in the criminal complaints simply does not properly charge rape, "sexual abuse" not being an essential element or ingredient thereof. Neither can accused-appellant be convicted of acts of lasciviousness or of any offense for that matter under our penal laws. It is settled that what characterizes the charge is the actual recital of facts 36 in the complaint or information. For every crime is made up of certain acts and intent which must be set forth in the complaint or information with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In other words, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged37, the accused being presumed to have no independent knowledge of the facts that constitute the offense.38 And even under the provisions of Republic Act No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act),39 accused-appellant cannot be held liable. Section 5 of said Act provides: SEC. 5. Child Prostitution and Other Sexual Abuse. -- Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: (1) Acting as a procurer of a child prostitute;

(2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means;

does not state the acts and omissions constituting the offense, or any special or aggravating circumstances attending the same, as required under the rules of criminal procedure. Section 8, Rule 110 thereof provides:

(3) Taking advantage of influence or relationship to procure a child as a prostitute;

Designation of the offense.—The complaint or information shall state the designation of the offense given by the statue, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

(4) Threatening or using violence towards a child to engage him as a prostitute; or (5) Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to engage such child in prostitution. (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of the Revised Penal Code, as amended by Act No. 3815, for rape or lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and (c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment. (Emphasis and underscoring supplied). Section 2 (g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases40, issued pursuant to Section 32 of Republic Act No. 7610, defines "sexual abuse" by inclusion as follows: Sexual abuse includes 1) the employment, use, persuasion, enticement, or coercion of a child to engage in, or assist another person to engage in sexual intercourse or lascivious conduct or 2) the molestation, 3) prostitution, or 4) incest with children. (Underscoring supplied) From this broad, non-exclusive definition, this Court finds that the phrase "sexually abuse" in the criminal complaints at bar does not comply with the requirement that the complaint must contain a specific averment of every fact necessary to constitute the crime. Notably, the phrase "sexual abuse" is not used under R.A. No. 7610 as an elemental fact but as an altogether separate offense. Above-quoted Section 5 thereof enumerates the punishable acts that must be alleged in the complaint or information to hold an accused liable, none of which is reflected in the complaints at bar charging accused-appellant. The case of People v. Cruz 41 is instructive. There the information in Criminal Case No. 15368-R read:

The allegation in the information that accused-appellant "willfully, unlawfully and feloniously commit sexual abuse on his daughter [Jeannie Ann] either by raping her or committing acts of lasciviousness on her" is not a sufficient averment of the acts constituting the offense as required under Section 8, for these are conclusions of law, not facts. The information in Criminal Case No. 15368-R is therefore void for being violative of the accused-appellant’s constitutionally-guaranteed right to be informed of the nature and cause of the accusation against him. (Emphasis & underscoring supplied) As held by this Court in the above-case of Cruz, the allegation in the information that the therein accused-appellant sexually abused the therein private complainant by either raping or committing acts of lasciviousness on her "is not a sufficient averment of the acts constituting the offense as required under Section 8 [of Rule 110], for these are conclusions of law, not facts." Nothing less can be said of the criminal complaints in the cases at bar. They are void for being violative of the accused-appellant’s constitutional right to be informed of the nature and cause of the accusation against him. This Court thus takes this occasion to remind public prosecutors of their crucial role in crafting criminal complaints and information. For all efforts may be rendered futile and justice may be denied by a failure to state "the acts or omissions complained of as constituting the offense" as exemplified by the present case. The foregoing disquisition leaves it unnecessary to dwell on accused-appellant’s assigned errors or of other errors including failure to allege relationship in the first complaint, and lack of proof of minority in both cases. WHEREFORE, the informations in Criminal Case Nos. U-9184 and U-9185 are hereby declared null and void for being violative of the constitutional right of accusedappellant Pedro Flores, Jr. y Flores alias "Pesiong," for Rape to be informed of the nature and cause of the accusation against him. Hence, the cases against him are hereby DISMISSED. The Director of Prisons is hereby directed to forthwith cause the release of accusedappellant unless the latter is being lawfully held for another cause and to inform the Court accordingly within 10 days from notice. Costs de oficio. SO ORDERED.

That on or about the 2nd day of August, 1997, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously commit sexual abuse on his daughter either by raping her or committing acts of lasciviousness on her, which has debased, degraded and demeaned the intrinsic worth and dignity of his daughter, JEANNIE ANN DELA CRUZ as a human being. CONTRARY TO LAW. (Emphasis supplied) Finding the above-quoted information void, this Court held: The Court also finds that accused-appellant cannot be convicted of rape or acts of lasciviousness under the information in Criminal Case No. 15368-R, which charges accused-appellant of a violation of R.A. No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act), "either by raping her or committing acts of lasciviousness." It is readily apparent that the facts charged in said information do not constitute an offense. The information does not cite which among the numerous sections or subsections of R.A. No. 7610 has been violated by accused-appellant. Moreover, it

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr., and Azcuna, JJ., concur.

EN BANC G.R. No. 134583 July 14, 2004 PEOPLE OF THE PHILIPPINES, appellee, vs. FREDDIE MURILLO, appellant.

DECISION AUSTRIA-MARTINEZ, J.: Before this Court on automatic review is the decision1 rendered by the Regional Trial Court, Branch 259, Parañaque, dated June 1, 1998, finding appellant Freddie Murillo guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of death. The Information charges appellant Freddie Murillo as follows: That on or about the 6th day of June, 1997, in the Municipality of Parañaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and stab one Paz Abiera with a bladed weapon on her chest, thereby inflicting upon her serious and mortal wounds which directly caused her death. With the aggravating circumstances of cruelty and abuse of superior strength. CONTRARY TO LAW.2 Upon arraignment, appellant, with the assistance of Atty. Dante O. Garin of the Public Attorney's Office, pleaded guilty to the charge.3 Trial then ensued. The prosecution presented Sancho Ferreras, brother of the victim; barangay tanod Ramon Saraos; SPO2 Angel Nieves of the Parañaque Police; and NBI Medico-legal Officer Ludivino Lagat. They established the following facts: On June 12, 1997, SPO2 Nieves received a report that Paz Abiera was missing.4 The following day, Ramon Saraos, a barangay tanod of Cul de Sac Rotonda, Sun Valley, Parañaque received a request from Sarah Murillo, mother of herein appellant and Arlan Murillo, to investigate a foul smell emanating from the house of Paz Abiera. Said house was being shared by Paz and her two nephews, appellant and Arlan. When Ramon asked appellant what happened to his aunt, the latter answered that Paz had been missing since June 7, 1997 and that he earlier reported the incident to the police. Ramon then asked permission from appellant to look inside the house and there he noticed blood stains at the foot of the house. Ramon also noticed that the foul odor was coming from inside. He asked assistance from the Parañaque Police and SPO2 Nieves responded. When SPO2 Nieves arrived, they removed the toilet bowl and opened the septic tank where they recovered parts of human arms and legs.5 SPO2 Nieves questioned Freddie and Arlan, who both denied any involvement in the killing of Paz. SPO2 Nieves later ordered that the two brothers be brought to Block 6. After about 30 minutes, SPO2 Nieves received a call from the radio saying that Freddie Murillo already admitted to having killed his aunt Paz Aberia using a knife. Freddie then showed them where he threw Paz's severed head. They were able to locate a red and white striped plastic bag which contained the victim's head at a canal near the service road of the South Super Highway. They also found a blood stained bed sheet, reading glasses and a stone with blood stains in the house of the victim.6 They recovered a total of eighty pieces of body parts that were all in an advanced state of decomposition. An examination conducted on the body parts showed that there were stab wounds that penetrated the lungs, the intestines and the liver. The examination also showed that it is possible that the instrument used in killing and decapitating the victim was a knife.7 As a hostile witness of the prosecution, appellant testified as follows: On June 6, 1997, at around 2:30 in the afternoon, his aunt, Paz Abiera scolded and slapped him for wasting electricity after she caught him watching television at the second floor of their house. His vision darkened ("nagdilim na po ang pangingin ko") due to the repeated times that Paz scolded and uttered hurtful words to him. When he saw a knife, he took it and stabbed her on the chest. He dragged her body from the second floor to the

comfort room downstairs where he chopped her body into several pieces using the same knife. After doing so, he removed the toilet bowl and dumped the body parts into the septic tank. He brought the severed head to the highway along the service road near Astra. Later, he asked help from his brother Arlan in cementing a new toilet bowl over the septic tank. His brother Arlan did not know that he killed their aunt. It took him a while to confess his guilt because he was afraid that the police might hurt him. While his mother, Sarah Murillo, often visited him and Arlan at their aunt's house, he did not tell his mother about what he did because he was afraid.8 After the testimony of appellant, the prosecution rested its case. On June 1, 1998, the trial court rendered its decision with the following findings: Assessing the evidence on record, particularly considering the admission made in open Court by the herein accused despite having been duly informed by his counsel of the consequences of his testimony, this Court finds without an iota of doubt that he alone committed the abominable act of killing his aunt and later on hideously dismembering her body in his attempt to hide the corpus of his crime. Truly unspeakable is the manner by which accused Murillo disposed of the body of the victim first by cutting her body parts and hiding them in a septic tank and then throwing away the victim's head in a canal or drainage along the service road near the South Superhighway. ... The information charges the herein accused for committing the crime of Murder with the qualifying circumstances of treachery (alevosia) and evident premeditation and with cruelty and abuse of superior strength as aggravating circumstances. On the aggravating circumstances of abuse of superior strength, the mere fact that the assailant is a male person whereas the victim is a woman does not ipso fact mean that such circumstance can be appreciated by the Court unless perhaps if it was shown that the attacker was a Hulk Hogan and the victim is a frail reed thin woman. Cruelty likewise cannot be inferred in the case at bar from the fact that the body of the deceased was dismembered in the absence of proof that this was done while the victim was still alive. The object sought to be attained by Murillo in this case may well have been to make the recovery of the body of the victim absolutely impossible. In regard to the qualifying circumstances of treachery or alevosia and evident premeditation, the fact that no commotion, no unusual sounds or noises were even heard or noticed in the vicinity at the time of the stabbing of the victim would indicate that the accused planned the killing and made sure that in its execution, there would be no risk to himself arising from any defense which said victim might make. Considering the rule however, that, if two or more possible qualifying circumstances were alleged and proven or in the case obtaining at the bar, only one would qualify the offense to Murder and the other would be generic.9 The dispositive portion of the decision reads: WHEREFORE, premises considered, finding accused FREDDIE MURILLO, GUILTY beyond reasonable doubt of the crime of Murder as defined and penalized under Art. 248 of the Revised Penal Code with the qualifying and/or generic aggravating circumstances of treachery or alevosia and or evident premeditation, this Court hereby sentences him to the penalty of DEATH and to suffer the accessory penalties provided by law specifically Art. 40 of the Revised Penal Code. For the civil liabilities, he is further condemned to indemnify the heirs of the herein victim Paz Abiera the amount of P50,000.00 in line with existing jurisprudence; P27,000.00 for funeral expenses; P50,000.00 for moral damages and P50,000.00 for exemplary damages. The Clerk of Court is also directed to prepare the Mittimus for the immediate transfer of accused Freddie Murillo from the Parañaque City Jail to the Bureau of Correction in Muntinlupa City and finally to forward all the records of this case to the Supreme Court for automatic review in accordance with Sec. 9, Rule 122 of the Rules of Court and Art. 47 of the Revised Penal Code as amended by R.A. 7659. SO ORDERED.10

Hence this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his brief, appellant claims that the court a quo gravely erred: I …IN CONVICTING (HIM) OF THE CRIME OF MURDER AND SENTENCING HIM TO DEATH ON THE BASIS OF HIS IMPROVIDENT PLEA OF GUITY; and II …IN CONSIDERING THE CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION IN QUALIFYING THE KILLING TO MURDER NOTWITHSTANDING THAT THE PROSECUTION FAILED TO ESTABLISH THE SAME.11 Appellant argues: His plea of guilt was improvident since there was no indication that he fully understood that the qualifying circumstances charged in the information would result to the penalty of death. He only admitted the killing but not the circumstances of treachery and evident premeditation. There could be no evident premeditation since he stabbed Paz only after losing his senses. There could also be no treachery since it cannot be determined with certainty whether or not the wounds inflicted on the victim were made before or after her death. The aggravating circumstance of "outraging or scoffing at his person or corpse" cannot be appreciated in this case since it was not alleged in the Information.12 The Solicitor General points out that there was treachery since the appellant himself admitted that when his aunt scolded him, he took a knife and suddenly stabbed her in the chest;13 and that the trial court did not err in finding the presence of evident premeditation.14 In his Reply, appellant adds that the observations made by the court a quo are based merely on inferences that are unsubstantiated by concrete evidence.15 After reviewing the entire records of the case, we find that there was an improvident plea of guilt that warrants the remand of the case to the trial court. Rule 116 of the Rules on Criminal Procedure provides: SEC. 3. Plea of guilty to capital offense; reception of evidence.--- When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence in his behalf. The reason for this rule is that courts must necessarily proceed with more care where the possible punishment is in its severest form – death – for the reason that the execution of such sentence is irrevocable. Experience has shown that innocent persons have at times pleaded guilty in the hope of a lenient treatment, or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. An accused might be admitting his guilt before the court and thus forfeit his life and liberty without having fully understood the meaning, significance and consequences of his plea. The judge therefore has the duty to ensure that the accused does not suffer by reason of mistaken impressions.16 Requiring the trial court to take further evidence would also aid this Court on appellate review in evaluating the propriety or impropriety of the plea.17

special attention to the age of the accused, his educational attainment and socioeconomic status as well as the manner of his arrest and detention, the provision of counsel in his behalf during the custodial and preliminary investigations, and the opportunity of his defense counsel to confer with him. The trial court must also explain to the accused the essential elements of the crime he is charged with as well as its respective penalties and civil liabilities.20 The exact length of imprisonment under the law and the certainty that he will serve time at the national penitentiary or a penal colony must be fully explained to the accused. The court must also explain to the accused that once convicted, he could be meted the death penalty and that it is a single and indivisible penalty that will be imposed regardless of any mitigating circumstance that may have attended the commission of the felony.21 The court must also direct a series of questions to the defense counsel to determine whether he has conferred with the accused and has completely explained to the latter the meaning of a plea of guilt. This formula is mandatory and absent any showing that it has been followed, a searching inquiry cannot be said to have been undertaken.22 In People vs. Pastor,23 the Court explained that while there is no definite and concrete rule as to how a trial judge must conduct a "searching inquiry", the following guidelines should nevertheless be observed: 1. Ascertain from the accused himself (a) how he was brought into the custody of the law; (b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions he was detained and interrogated during the investigations. This is intended to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent quarters or simply because of the judge's intimidating robes. 2. Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty. 3. Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty. 4. Inform the accused the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. For not infrequently, an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to ensure that the accused does not labor under these mistaken impressions because a plea of guilty carries with it not only the admission of authorship of the crime proper but also of the aggravating circumstances attending it, that increase punishment. 5. Inquire if the accused knows the crime with which he is charged and fully explain to him the elements of the crime which is the basis of his indictment. Failure of the court to do so would constitute a violation of his fundamental right to be informed of the precise nature of the accusation against him and a denial of his right to due process. 6. All questions posed to the accused should be in a language known and understood by the latter. 7. The trial judge must satisfy himself that the accused in pleading guilty, is truly guilty. The accused must be required to narrate the tragedy or reenact the crime or furnish its missing details.24

Under the said rule, three things are required from the trial court when a plea of guilty to a capital offense is entered: (1) the court must conduct a searching inquiry into the voluntariness of the plea and the accused's full comprehension of the consequences thereof; (2) the court must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and (3) the court must ask the accused if he desires to present evidence on his behalf and allow him to do so if he desires.18

In the case at bar, records do not show that a searching inquiry was ever conducted by the judge when appellant entered his plea of guilty. The Order dated July 14, 1997 simply reads as follows:

The searching inquiry referred to here means more than just informing cursorily the accused that he faces jail term.19 The inquiry must expound on the events that actually took place during the arraignment, the words spoken and the warnings given, with

Let this case be set for hearing on July 28, 1997 at 8:30 o'clock in the morning.

Accused, when arraigned, with the assistance of Atty. Dante O Garin of the Public Attorney's Office, pleaded GUILTY to the crime charged in the information.

Let subpoena be issued to all prosecution witnesses for the next scheduled hearing.

ano'ng bagay na maaaring ikapahamak mo. Maaari mong hindi sagutin iyong tanong, maaring hindi ka umupo riyan, nasa sa iyo ang desisyon. Naiintindihan mo ba?

SO ORDERED.25 A. Opo. While we have held that the absence of the transcript of stenographic notes of the proceedings during the arraignment does not make the procedure flawed, the minutes of the proceedings, however, must indubitably show that the judge has substantially complied with the requirements of Rule 116, Sec. 3.26 No less than a man's life is at stake in this case. Whatever appellant might have said to show that he was waiving his defense voluntarily and with full knowledge of the consequences of his plea should have been made of record.27 Here, there is no proof at all that the judge ever conducted any searching inquiry. The trial court mentioned in its decision the importance of Section 3, Rule 116, of the Rules of Court in cases of pleas of guilt, however, it failed to show compliance therewith. Pertinent portions of the decision read: Under Sec. 3, Rule 116 of the Rules of Court, when the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence in his behalf. In People vs. Salvador, 224 SCRA 819, to be liable for murder, an accused must be proven to have committed the killing of another person under the attendant circumstances specified in Article 248 of the Revised Penal Code. In People vs. Jocson, 163 SCRA 525, Accused's plea of guilty which was freely and voluntarily made added to the evidence adduced by the prosecution sufficiently established his culpability. With the plea of guilty, appellant had admitted the commission of the unlawful act. Hence, the presumption is that the act was done with an unlawful intent unless accused rebuts this presumption. People vs. Verona, 163 SCRA 614. Assessing the evidence on record, particularly considering the admission made in open Court by the herein accused despite having been duly informed by his counsel of the consequences of his testimony, this Court finds without an iota of doubt that he alone committed the abominable act of killing his aunt and later on hideously dismembering her body in his attempt to hide the corpus of his crime. Truly unspeakable is the manner by which accused Murillo disposed of the body of the victim first by cutting her body parts and hiding them in a septic tank and then throwing away the victim's head in a canal or drainage along the service road near the South Superhighway.28 The transcript of how the defense counsel, Atty. Dante O. Garin of the Public Attorney's Office, supposedly informed the accused of his rights also merely read as follows: ATTY. GARIN: Your Honor please the accused already pleaded guilty to the offense charged and the only reason we have to the motion of presenting evidence is that the guilt of the accused must be proven by the prosecution notwithstanding the plea of guilty entered into during his arraignment. This representation your Honor finds it necessary to inform the accused of his constitutional rights. And with the Court's permission, before he will testify as hostile witness, I would like to inform the accused for the record. Q. Mr. Freddie Murillo, ikaw ang akusado dito sa kasong ito. Ang proseso natin ay kung sino man ang nagbibintang ay siyang dapat magpatunay ng kasalanang ibinibintang. Sa sitwasyong ito, ikaw ay pinagbibintangan ng kasong murder. At ang ebidensiyang gagamitin ay dapat manggagaling sa kung sino man ang nagbibintang sa iyo na ikaw ay nakapatay ng tao. Ngayon ikaw ay uupo ngayon sa silyang iyan para magsalita tungkol doon sa pangyayari. Meron kang karapatan na hindi pumayag na magsalita ng

Q. Ngayong naipaliwanag ko na sa iyo ikaw ba ay handang magsalita tungkol sa kasong ito? A. Opo. That's all for the witness, your Honor.29 Clearly, the proceedings taken by the trial court was short of being satisfactory. Appellant was never asked about the circumstances of his arrest and detention, not even when SPO2 Nieves himself in his testimony mentioned that he ordered that the two brothers be brought to "Block 6" for questioning without the presence of counsel. Where or what kind of place "Block 6" is, was not even explained by the witness neither did the court nor the defense counsel ask the witness to clarify said point. The Court also did not ask appellant about the circumstances of his arraignment as well as his age and educational attainment. He was also neither apprised of the consequences of his plea nor was it explained to him that the penalty imposable for the crime attended by its qualifying circumstances as alleged in the Information is death regardless of the presence of mitigating circumstances. The failure of the defense counsel to faithfully protect the rights of appellant also cannot go unnoticed. Records show that defense counsel Atty. Dante O. Garin, never cross-examined three of the four witnesses of the prosecution, namely Sancho Fereras,30 Ramon Saraos,31 and Dr. Ludivino Lagat.32 The only prosecution witness he cross-examined was SPO2 Nieves to whom he asked four questions pertaining only as to how the police came to the conclusion that the body parts belong to Paz Abiera.33 Apart from these, no other questions were ever offered. There is also no record anywhere that the defense counsel presented evidence for the accused nor that the trial court even inform him of his right to do so if he so desires. For these reasons, it cannot be said that the appellant's rights were observed in the proceedings a quo. It is well established that the due process requirement is part of a person's basic rights and is not a mere formality that may be dispensed with or performed perfunctorily. An accused needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law's complexity or of his own ignorance and bewilderment. Indeed, the right to counsel springs from the fundamental principle of due process.34 The right to counsel, however, means more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is sufficiently accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. This right necessitates an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case and his knowing the fundamental procedures, essential laws and existing jurisprudence. Indeed, the right of an accused to counsel finds meaning only in the performance by the lawyer of his sworn duty of fidelity to his client and an efficient and truly decisive legal assistance which is not just a simple perfunctory representation.35 Atty. Garin, had the duty to defend his client and protect his rights, no matter how guilty or evil he perceives appellant to be. The performance of this duty was all the more imperative since the life of appellant hangs in the balance. As a defense counsel, he should have performed his duty with all the zeal and vigor at his command to protect and safeguard appellant's fundamental rights.36 While our jurisdiction does not subscribe to a per se rule that once a plea of guilty is found improvidently he is at once entitled to a remand, the circumstances of this case warrant that a remand to the trial court be made. To warrant a remand of the criminal case, the Court has held that it must be shown that as a result of such irregularity there was inadequate representation of facts by either the prosecution or the defense during the trial.37 Where the improvident plea of guilty was followed by an abbreviated proceeding with practically no role at all played by the defense, we have ruled that this procedure was just too meager to accept as being the standard constitutional due process at work enough to forfeit a human life.38 What justifies the remand of the

criminal case to the trial court is the unfairness or complete miscarriage of justice in the handling of the proceedings a quo as occasioned by the improvident plea of guilt.39 In this case, apart from the testimony of appellant, the prosecution does not have any other evidence to hold him liable for the crime charged. In view of the foregoing, we find that it is imperative to remand the case for the proper arraignment and trial of the accused, considering not only the accused's improvident plea of guilt but also his lawyer's neglect in representing his cause. WHEREFORE, the decision dated June 1, 1998 of the Regional Trial Court, Branch 259, Parañaque, finding appellant Freddie Murillo guilty beyond reasonable doubt of Murder in Criminal Case No. 97-502 is ANNULLED and SET ASIDE. Let the records be REMANDED to the court of origin for further proceedings as indicated in the text of herein decision, to be conducted with deliberate speed in accordance with this decision. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

EN BANC G.R. No. 139180 July 31, 2001 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO RIVERA, accused- appellant. MENDOZA, J.: This is a review pursuant to Rule 122, §10 of the Rules of Criminal Procedure of the decision,1 dated June 22, 1999, of the Regional Trial Court, Branch 49, Guagua, Pampanga, finding accused-appellant Rolando Rivera guilty of rape and sentencing him to suffer the penalty of death and to pay the offended party, Erlanie Rivera, the sum of P75,000.00 as compensatory damages and P50,000.00 as moral damages. The information against accused-appellant charged— That sometime in the month of March 1997, in barangay Santiago, municipality of Lubao, province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused ROLANDO RIVERA, by means of violence, threat and intimidation, did then and there willfully, unlawfully and feloniously, and maliciously succeeded in having carnal knowledge [of] his 13 year old daughter, Erlanie D. Rivera, against the latter’s will and without her consent.

accused-appellant because she was afraid of her father who had threatened her. After the rape, accused-appellant would only come home on Sundays.8 Questioned further on cross-examination, Erlanie said that she gave her sworn statement before the police and that her answers to questions asked during her direct examination were freely given without coaching by anyone. She could understand Tagalog, the language used in her sworn statement. She told the court that she struggled against accused-appellant, kicking and pushing him, but she was overpowered by her father. At that time, Erlanie’s younger sister, Corazon, was lying beside her, but Erlanie did not shout even when her father succeeded in penetrating her. Erlanie could not remember how long the sexual act took place, but she felt something like urine come out of her father’s penis after he was finished with her. Erlanie testified that she was 12 years old when she was raped by her father.9 On re-direct examination, when asked about the discrepancy between her testimony that her mother returned home only the day after the rape and her statement in her affidavit that accused-appellant slept beside her mother after the rape, Erlanie replied that she made a mistake as the incident narrated in her affidavit referred to a different occasion when no rape was committed against her by accused-appellant.10 The next witness for the prosecution was Marietta Pagtalunan, complainant’s aunt and the sister of complainant’s mother, Evangeline. Marietta corroborated Erlanie’s testimony that the latter told her sometime in April 1997 that she had been raped by accused-appellant. Marietta said she took complainant to Dr. Barin, who examined complainant.11

Contrary to law.2 When the information was read to him in the local dialect (Pampango) during his arraignment on September 30, 1997, accused-appellant, duly assisted by counsel de oficio, pleaded not guilty to the crime charged,3 whereupon trial was held. The prosecution presented as its witnesses complainant Erlanie Rivera, her aunt, Marietta Pagtalunan, and Dr. Demetria Barin, who conducted the physical examination of complainant.

Dr. Demetria Barin was Chief Physician of the Escolastica Romero District Hospital. Her findings are as follows: P.E. FINDINGS: - No signs of external Physical Injuries I.E. FINDINGS:

Complainant Erlanie Rivera testified that sometime in March 1997, her younger sister, Zaira,4 was taken by their parents to the Escolastica Romero Memorial Hospital in Lubao, Pampanga. Complainant’s mother stayed with her sister in the hospital, but her father, herein accused-appellant, went back home to Santiago, Lubao, Pampanga. At around 11 o’clock in the evening of the same day, complainant was awakened as accused-appellant started kissing her and fondling her breasts. Complainant tried to resist by kicking and pushing accused-appellant, but her efforts were to no avail. Accused-appellant removed her shorts and panty, touched her private parts, and then had sexual intercourse with her. After he was through with her, accused-appellant told complainant not to tell anyone what had happened or he would kill complainant’s mother and sister. Hence, when her mother came home the following day, Erlanie did not tell her what had happened because she was afraid of accused-appellant. On April 9, 1997, however, Erlanie, in the presence of her mother, told her aunt, Marietta Pagtalunan, and her grandmother, Maxima Payumo, that she had been raped by accused-appellant. For this reason, she was referred to Dr. Barin for physical examination. She also executed a sworn statement before the police of Lubao, Pampanga.5 Erlanie testified that she became pregnant as a result of the rape committed against her by accused-appellant, but the pregnancy was aborted.6 On cross-examination, she said she was 13 years old at the time of her testimony, the second child in the family. She said that her parents were not on good terms with each other and that she knew that her father had a mistress. Atty. Mangalindan, then defense counsel, questioned Erlanie about other supposed acts of molestation committed by accused-appellant against her previous to the rape subject of the present case, but, upon objection of the prosecution, the trial court disallowed the question on the ground that it concerned matters not covered by her direct examination.7 Erlanie testified that her mother, grandmother, aunt, and a certain Nora Baluyut were present when she made her sworn statement before the police. She said that her father raped her only once, sometime in March 1997. She could not remember the exact date when she was raped by accused-appellant, but she did remember that the same took place in March as her sister, Zaira, was hospitalized at the time. When the rape occurred, her younger brother and sister were in their house asleep. She did not tell her mother after the latter had returned home that she had been raped by

HYMEN - healed laceration at 3:00 o’clock VAGINA - Admits one finger with ease two fingers with difficulty UTERUS - not enlarged LMP - March 3, 1997 Pregnancy Test (+)12 Dr. Barin testified that on April 10, 1997, she examined complainant Erlanie Rivera and found that the victim had an injury in the hymen at the 3 o’clock position which could possibly have been caused by the insertion of a hard object, such as a male organ. Dr. Barin testified that complainant Erlanie went back to see her on May 2, 1997 because she suffered from vaginal bleeding indicative of a threatened abortion. She said that she found that complainant was then pregnant. Upon examination of the patient at that time, Dr. Barin found that abortion had not yet taken place and prescribed medicines for the complainant. Erlanie was subjected to another pregnancy test on May 13, 1997, but the result was negative. Dr. Barin stated that the vaginal bleeding suffered by complainant could have caused the abortion of the fetus.13 Thereafter, the defense presented its evidence. Accused-appellant, his sister, Concepcion Sayo, and Natividad Pinlac, Records Officer of the Escolastica Romero District Hospital, were presented as witnesses. Accused-appellant denied that he raped Erlanie Rivera. He alleged that the rape charge was filed against him because his wife, Evangeline, had a paramour and resented him because he hurt her. He explained that he saw his wife talking with another man in their house and beat her up on April 1, 1997 because he heard that she had a lover. He also said that his wife was angry with him because he had a mistress who stayed in their house for three weeks. He further stated that his wife’s relatives were likewise angry with him because he caused the lot owned by his father-in-law in Santiago, Lubao, Pampanga to be registered in his name. He said that he was compelled to sign a waiver of his rights over the land owned by his parents-in-law.14 The defense

presented a letter to accused-appellant written by his wife, who was asking him to sign a document so that she could attend to it before he got out of prison.15

The transcript of stenographic notes concerning this incident shows the following: ATTY. MANGALINDAN:

The defense also offered as evidence a document, designated as Waiver of Rights,16 signed by accused-appellant, in which he acknowledged that he was a tenant of a parcel of land and that he waived and voluntarily surrendered his right over the said landholding to the "SMPCI," recommending that a certain Ponciano Miguel be given the land to work on the same. The document was identified by accusedappellant in open court. He said that Ponciano Miguel was a first cousin of his wife and that he signed the document because his wife’s relatives promised him that he would get out of prison after signing the document.17

Q You mentioned in your testimony that you were molested by your father since 1996. COURT: Are you referring to a chain of events because police station you are referring is something there are two places this girl testified that she was raped, you referred to us Acts of Lasciviousness and she did not testified about that, that is another case with another Court, we are only trying here a rape case that is only they you never mention. Only on the matters that she testified (sic).

Another witness for the defense was Concepcion Sayo, accused-appellant’s sister, who testified that in March 1997, accused-appellant lived with her family in Malawak, Bustos, Bulacan, to help her husband operate a fishpond. She said that accusedappellant stayed in their house during the entire month of March, except in March 19, 1997 when he stayed with their sister, Perla, in Tibagan, Bustos, Bulacan.18 The last defense witness was Natividad Pinlac, Records Officer of the Escolastica Romero District Hospital, who identified19 a certification, dated April 29, 1999, in which it was stated that Zaira Rivera was confined at that hospital from March 1 to March 2, 1997.20 On June 22, 1999, the trial court rendered a decision, the dispositive portion of which stated: WHEREFORE, the court finding the accused guilty beyond reasonable doubt of the crime of rape as charged. For having violated Article 335 of the Revised Penal Code, as amended by Republic Act 7659, with the attendant circumstances that the victim is under eighteen (18) years of age and the offender is the father of the victim and absent any circumstance that could mitigate the commission thereof, accused is hereby sentenced to suffer the supreme penalty of death by lethal injection. In line with established jurisprudence, said accused is also ordered to indemnify the offended party Erlanie Rivera in the sum of P75,000.00 as compensatory damages and P50,000.00 as moral damages.

ATTY. MANGALINDAN: But this is also related to the rape case your Honor because I will confront it with another form of a question. ATTY. MANGALINDAN: Q

Prior to this incident, were you molested by your father?

PROSECUTOR SANTOS: Immaterial, your Honor, whatever acts w[ere] done by the accused is not a subject of the case at bar. COURT: Let us confine [questioning] to the complaint at bar which is a rape case.

SO ORDERED.21 ATTY. MANGALINDAN: Hence, this appeal. Accused-appellant contends that: This is related to the incident because we are here your Honor to prove, we are trying to discredit her testimony. We will just direct our question touching on the direct examination.

1. The lower court failed to observe the constitutional right of the AccusedAppellant to due process and right to counsel; 2. The lower court failed to consider the evidence of the AccusedAppellant.22 I. Accused-appellant invokes his right to due process of law. He claims that he was denied the same because: (a) the trial judge disallowed his lawyer from crossexamining Erlanie Rivera concerning the latter’s sworn statements on the ground of irrelevance and immateriality; (b) the trial court denied the motion made by accusedappellant’s counsel de oficio to postpone the cross-examination of Dr. Barin, the examining physician, because of which the said counsel consequently waived the cross-examination of Dr. Barin; (c) the judge propounded numerous questions to accused-appellant during his cross-examination by the prosecutor; and (d) the trial court’s decision was promulgated just one day after accused-appellant submitted his memorandum. Procedural due process simply means that a person must be heard before he is condemned. The due process requirement is a part of a person’s basic rights, not a mere formality that may be dispensed with or performed perfunctorily.23 Considering both the evidence and the law applicable to this case, we hold that accused-appellant has been accorded his right to due process. A. One basis for accused-appellant’s contention that he was denied due process is the refusal of the trial judge to allow Atty. Mangalindan’s questions concerning the other alleged acts of molestation committed by accused-appellant against complainant. Accused-appellant argues that no legal ground exists for the trial court’s ruling.

COURT: Only on the matters that she only testified that is only thing you can cross-examine. Only matters testified which is only a rape case let us not dwell the Court knows there are other cases Acts of Lasciviousness pending in the lower Court at the proper Court otherwise if I will allow you to ask questions on other matters specially I know you are pinpointing the Acts of Lasciviousness you are prolonging this case here (sic). ATTY. MANGALINDAN: I am trying to discredit the witness as one where the credibility as witness here your Honor is very important. I stated before our main cross-examination is the accused is not a plan in such case, although I do sympathize (sic). We would like to propound question that will discredit her as witness and a complainant not with her testimony alone. Our center of crossexamination is to discredit her as complaining witness that is why our question may not be limited to be accepted under the rule of cross-examination your Honor the cross-examination your Honor the cross-examiner is not limited on the directtestimony of the witness but he can propound questions which may petition or destroy the credibility of the witness that is our view point (sic).

PROSECUTOR SANTOS: We cannot dispute the right of accused to discredit or to adopt our credibility of our witness, but it should be done in the proper way, not to ask immaterial questions which are not related.

reverse. On the contrary such questions, if allowed, will unduly burden the court with immaterial testimonies.25 In another order, dated January 13, 1998, the trial court gave accused-appellant’s counsel 20 days within which to elevate its ruling to the appellate court.26 The records reveal, however, that no such petition was filed by Atty. Mangalindan as regards this particular matter.

ATTY. MANGALINDAN: The rule for cross-examination insofar as to destroy the credibility of the witness is not only limited to what the Honorable Fiscal we came approach of so many crossexaminations goes allow your Honor under the rules of Court insofar as this case is related to the present case we are trying, this is very related because even the witness I have transcript in my hand, testified not only the rape case your Honor she had testified by direct-examination the preparatory acts before the testimony of rape that she was been molested early, finger of the father, this were testified through by the witness, it is here direct-testimony it is not limited (sic). PROSECUTOR SANTOS: Prior to this incident were you molested by your father, obviously your Honor the question is not relevant. ATTY. MANGALINDAN: Your Honor please I’m very disagreeable (sic), I have not with me the transcript but I have read that you [can] ask questions concerning the rape case. COURT: A question referring to events prior to the complaint at bar.24 The trial court later issued an order, dated December 9, 1997, the pertinent parts of which provided: After private complainant testified on direct-examination, counsel for accused attempted to cross-examine her on matters relevant to the complaint for Acts of Lasciviousness which was objected to by Asst. Provincial Prosecutor Arturo G. Santos on the ground that private complainant did not testify on that matter but limited her testimony on the rape case only. Counsel for the accused argued that although that is correct nonetheless because [of] the sworn statement executed by private complainant identified by said witness in her direct examination and marked as Exhibit "C" for the prosecution, he is at liberty to cross-examine the witness on all matters stated in her sworn statement including that portion touching on the acts of lasciviousness subject matter of another case before another court. The Court sustained the objection. Section 6, Rule 132, Revised Rules on Evidence provides that "the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias or the reverse, and to elicit all important facts bearing upon the issue." The witness testified only on the rape case. She did not testify anything about acts of lasciviousness committed upon her person. She may not therefore be questioned on this matter because it is not connected with her direct testimony or has any bearing upon the issue. To allow adverse party to cross-examine the witness on the acts of lasciviousness which is pending trial in another court and which the witness did not testify is improper. Questions concerning acts of lasciviousness will not in any way test the accuracy and truthfulness and freedom from interest or bias or the

The question, therefore, is whether the trial court correctly disallowed accusedappellant’s counsel from questioning complainant as regards the other supposed acts of lasciviousness contained in her sworn statement. On this point, Rule 132, §6 of the Revised Rules on Evidence provides: Upon the termination of the direct examination, the witness may be crossexamined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest, bias or the reverse and to elicit all important facts bearing upon the issue. The right of a party to cross-examine a witness is embodied in Art. III, §14(2) of the Constitution which provides that the accused shall have the right to meet the witnesses face to face and in Rule 115, §1(f) of the Revised Rules of Criminal Procedure which states that, in all criminal prosecutions, the accused shall have the right to confront and cross-examine the witnesses against him.27 The cross-examination of a witness is essential to test his or her credibility, expose falsehoods or half-truths, uncover the truth which rehearsed direct examination testimonies may successfully suppress, and demonstrate inconsistencies in substantial matters which create reasonable doubt as to the guilt of the accused and thus give substance to the constitutional right of the accused to confront the witnesses against him.28 The right of the accused to cross-examine a witness is, however, not without limits but is subject to the rules on the admissibility and relevance of evidence. Thus, in People v. Zheng Bai Hui,29 this Court upheld the ruling of the trial judge disallowing the questions propounded by the accused’s counsel on the ability of the arresting officer to distinguish between tawas and shabu without a laboratory examination, the academic degree of his training instructor, and the officer’s authorship of books on drug identity and analysis for being irrelevant, improper, and impertinent. In this case, accused-appellant’s counsel argued that his questions to Erlanie on the other acts of lasciviousness supposedly committed by accused-appellant against her were for the purpose of testing her credibility. There was, however, no showing on his part how these questions had any bearing on complainant’s credibility or on the truth of her claims. One is led to suspect that the purpose of these questions was to confuse complainant into committing mistakes in her answers during cross-examination that accused-appellant’s counsel could later use to possibly put complainant’s credibility, not to mention her character, in question. Accused-appellant insists that his counsel should have been allowed to ask questions in relation to the sworn statement executed by complainant. He cites Rule 132, §17 of the Revised Rules of Evidence which provides that: When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject matter may be inquired into by the other. Neither can this rule be invoked to justify the questioning of complainant which the trial court did not allow. As the above provision states, this rule applies to parts of "an act, declaration, conversation, writing or record" which is given in evidence. Indeed, the records show that after Erlanie had finished with her direct examination on November 25, 1997, the trial judge granted the motion made by Atty. Anselmo Mangalindan, accused-appellant’s private counsel, to postpone Erlanie Rivera’s crossexamination to allow him time to secure copies of the transcript of stenographic notes of Erlanie’s testimony and thus enable him to fully question complainant.30 Erlanie was first cross-examined on December 2, 1997, but several postponements, namely, on January 13, 1998,31 February 10, 1998,32 March 12, 1998,33 March 31, 1998,34 April 7, 1998,35 May 12, 1998,36 May 26, 1998,37 May 28, 1998,38 and June 11, 1998,39 on Erlanie’s cross-examination took place because of the failure of Atty. Mangalindan to appear on the said trial dates. Erlanie’s cross-examination was continued on July 14, 1998 and July 23, 1998. Her cross-examination by accused-appellant’s counsel was thorough and covered various subjects, such as the nature of the relationship between her parents, who were present during the execution of her sworn statement, whether

the same had been executed by her voluntarily, the date when she was raped by accused-appellant the reason for her delay in reporting the rape committed by accused-appellant, her understanding of Tagalog, who were with her in the house at the time of the rape, the details surrounding the rape committed against her, and her age. It is evident that accused-appellant and his counsel were given ample opportunity to conduct the cross-examination of Erlanie Rivera in order to test her truthfulness. B. The record shows that because accused-appellant’s private counsel was not present when Dr. Barin testified, Atty. Eddie Bansil was appointed by the trial court as accusedappellant’s counsel de oficio for that particular hearing. Atty. Bansil moved for the postponement of the witness’ cross-examination, but the trial court denied his request because, on the one hand, accused-appellant was a detention prisoner and Dr. Barin was a very busy person, while, on the other hand, Atty. Bansil had heard the testimony of the said witness. Atty. Bansil then decided not to cross-examine Dr. Barin.40 Accused-appellant now contends that the trial judge denied the motion of Atty. Bansil for postponement because he was biased against him. Accused-appellant claims that the counsel de oficio was not familiar with the facts of his case and was thus in no position to cross-examine Dr. Barin. While the Constitution recognizes the accused’s right to competent and independent counsel of his own choice, his option to secure the services of a private counsel is not absolute. For considering the State’s and the offended party’s right to speedy and adequate justice, the court may restrict the accused’s option to retain a private counsel if the accused insists on an attorney he cannot afford, or if the chosen counsel is not a member of the bar, or if the attorney declines to represent the accused for a valid reason.41 The trial court appointed Atty. Bansil a counsel de oficio to represent accusedappellant on October 6, 1998 because his regular counsel, Atty. Anselmo Mangalindan, was absent without any explanation. Atty. Mangalindan had previously been granted several postponements. As this Court ruled in another case: . . . Courts are not required to wait indefinitely the pleasure and convenience of the accused as they are also mandated to promote the speedy and orderly administration of justice. Nor should they countenance such an obvious trifling with the rules. Indeed, public policy requires that the trial continue as scheduled, considering that appellant was adequately represented by counsels who were not shown to be negligent, incompetent or otherwise unable to represent him.42 Atty. Bansil was present and heard the testimony of Dr. Barin, the prosecution witness, on that day. Dr. Barin’s testimony on direct examination was simple, containing primarily a discussion of her findings on the hymenal laceration sustained by complainant. Her testimony did not require considerable study and extraordinary preparation on the part of defense counsel for the purpose of cross-examination. It seems Atty. Bansil no longer found it necessary to cross-examine Dr. Barin. Moreover, beyond stating that Dr. Barin was a vital witness, accused-appellant has not indicated what questions his counsel wanted to ask from Dr. Barin. It may well be that these questions do not exist at all and that the importance given by accused-appellant to counsel de oficio’s failure to cross-examine the witness is exaggerated. Indeed, a medical examination of the victim, together with the medical certificate, is merely corroborative and is not an indispensable element of rape.43 The primordial issue in this case remains to be whether the complainant’s testimony, not Dr. Barin’s, established beyond reasonable doubt the crime of rape. C. Accused-appellant likewise points to the trial judge’s questions propounded to him during his cross-examination as an indication of the latter’s partiality for the prosecution. We find no merit in this contention. Where the trial court is judge both of the law and of the facts, it is oftentimes necessary in the due and faithful administration of justice for the presiding judge to re-examine a witness so that his judgment, when rendered, may rest upon a full and clear understanding of the facts.44 Our reading of the transcript of stenographic notes in this case shows that the trial judge merely wanted to clarify certain points relating to the defense of accused-appellant and not to establish his guilt. It is a judge’s prerogative to ask questions to ferret out the truth.45 It cannot be taken against him if the questions he propounds reveals certain truths which, in turn, tend to destroy the theory of one party.46 As this Court held:

In any case, a severe examination by a trial judge of some of the witness for the defense in an effort to develop the truth and to get at the real facts affords no justification for a charge that he has assisted the prosecution with an evident desire to secure a conviction, or that he had intimidated the witnesses for the defense. The trial judge must be accorded a reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts to make the record speak the truth. Trial judges in this jurisdiction are judges of both the law and the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material bearing upon the outcome. In the exercise of sound discretion, he may put such question to the witness as will enable him to formulate a sound opinion as to the ability or the willingness of the witness to tell the truth. A judge may examine or cross-examine a witness. He may propound clarificatory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant and material testimony though that testimony may tend to support or rebut the position taken by one or the other party. . .47 D. We also find no merit in accused-appellant’s argument that he was denied due process considering the speed with which the trial court rendered judgment against him, which judgment was promulgated one day after he filed his memorandum. The decision rendered by the trial court gives a clear account of the facts and the law on which it is based. It discusses in full the court’s findings on the credibility of both the prosecution and defense witnesses and its evaluation of the evidence of both parties. What we said in the analogous case of People v. Mercado48 applies to this case: . . . A review of the trial court’s decision shows that its findings were based on the records of this case and the transcripts of stenographic notes during the trial. The speed with which the trial court disposed of the case cannot thus be attributed to the injudicious performance of its function. Indeed, a judge is not supposed to study a case only after all the pertinent pleadings have been filed. It is a mark of diligence and devotion to duty that a judge studies a case long before the deadline set for the promulgation of his decision has arrived. The one-day period between the filing of accusedappellants’ memorandum and the promulgation of the decision was sufficient time to consider their arguments and to incorporate these in the decision. As long as the trial judge does not sacrifice the orderly administration of justice in favor of a speedy but reckless disposition of a case, he cannot be taken to task for rendering his decision with due dispatch. . . II. Coming now to the merits of this case, we find that the evidence proves beyond reasonable doubt the guilt of accused-appellant. In reviewing rape cases, we have been guided by the following principles: (a) An accusation for rape is easy to make, difficult to prove, and even more difficult to disprove; (b) In view of the intrinsic nature of the crime, the testimony of the complainant must be scrutinized with extreme caution; and (c) The evidence for the prosecution must stand on its own merits and cannot draw strength from the weakness of the evidence for the defense.49 A. Well-settled is the rule that the lone testimony of a rape victim, by itself, is sufficient to warrant a judgment of conviction if found to be credible. It has likewise been established that when a woman declares that she has been raped she says in effect all that is necessary to mean that she has been raped, and where her testimony passes the test of credibility the accused can be convicted on the basis thereof. This is because from the nature of the offense, the sole evidence that can usually be offered to establish the guilt of the accused is the complainant’s testimony.50 Considering complainant’s tender age, her shy demeanor, and manner of testifying in court, the trial court found Erlanie’s testimony to be straightforward, natural, and convincing and accorded the same full faith and credit.51 Complainant told the court how she was awakened because accused-appellant kissed her and fondled her breasts. She narrated that she tried to resist accused-appellant’s advances by pushing and kicking him, but the latter succeeded in ravishing her. She told of how her father threatened to kill her mother and her siblings if she reported the incident. Despite the lengthy cross-examination of accused-appellant’s counsel, she remained firm and steadfast in her story of how she was raped by her father. Her narration not only rings true and sincere but is consistent and unshaken on its material points. Complainant’s testimony is fully corroborated by the medical findings of Dr.

Barin who examined complainant shortly after she had been raped. She found complainant to have suffered a hymenal laceration at the 3 o’clock position which could have been caused by the penetration of a hard object, such as a male organ. Complainant’s failure to remember the date of the commission of the rape cannot be taken against her. The exact date when complainant was sexually abused is not an essential element of the crime of rape.52 Nor does the fact that complainant was sleeping beside her sister when the rape occurred detract from her credibility. The possibility of rape is not negated by the fact that the presence of even the whole family of the accused inside the same room produced the possibility of discovery. For rape to be committed, it is not necessary for the place to be ideal, for rapists respect neither time nor place for carrying out their evil designs.53 In sum, accused-appellant failed to show any reason why this Court should disbelieve complainant’s testimony. Indeed, the gravity of filing a case for incestuous rape is of such a nature that a daughter’s accusation must be taken seriously. It is against human experience for a girl to fabricate a story which would drag herself and her family to a lifetime of dishonor, unless it is the truth. More so when her charge could mean the execution of her own father, as in this case.54 Accused-appellant’s counsel on cross-examination made much of the discrepancy between complainant’s sworn statement where she stated that accused-appellant slept beside her mother after the rape55 and her testimony that her mother returned home from the hospital only the day after the rape took place.56 It must be pointed out, however, that discrepancies between a witness’ affidavit and his testimony in open court does not necessarily impair his credibility. Affidavits, which are taken ex parte, are often incomplete or inaccurate for lack of or absence of searching inquiries by the investigating officer.57 Moreover, whether accused-appellant slept alone or with complainant’s mother after committing the rape of complainant is of no moment as it is a minor point that does not reflect on the commission of the crime itself. The rule is that discrepancies and inconsistencies on minor matters neither impair the essential integrity of the prosecution evidence as a whole nor reflect on the witness’ honesty. Such inconsistencies may in fact strengthen rather than weaken the credibility of the witness as they erase any suspicion of rehearsed testimony.58 Accused-appellant contends that complainant could not have been raped on March 1 or 2, 1997, the dates when her sister Zaira was hospitalized, because she had her last menstrual period on March 3, 1998 and thus she could not have gotten pregnant as a result of the rape. He argues that a woman who had her monthly period cannot be impregnated as a result of sexual intercourse five days before or five days after her last menstruation.59 Accused-appellant does not, however, cite any legal or medical authority for his thesis, except what he claims to be common knowledge. On the other hand, we have previously held that it is hard to ascertain the exact date of fertilization inasmuch as more than two weeks is considered to be the life span of the spermatozoa in the vaginal canal.60 Hence, even granting that complainant could not have been impregnated by accused-appellant during the period alleged by him, it remains possible for complainant to have gotten pregnant afterwards. More importantly, it must be emphasized that pregnancy is not an element of the crime of rape and is, therefore, totally immaterial to the question of accused-appellant’s guilt.61 In other words, accused-appellant being the cause of complainant’s pregnancy is a non-issue in the prosecution of the crime of rape. What should not be lost sight of is the fact that complainant’s testimony constitutes proof beyond reasonable doubt that accusedappellant had carnal knowledge of her without her consent, and such fully established the crime of rape. B. Accused-appellant imputes ill motive on the part of complainant’s mother and her relatives for bringing charges against him. He claims that complainant’s mother resented the fact that he used to beat her up out of jealousy and that he had several paramours in the past. He further asserts that his wife’s relatives were angry with him because of the land which he caused to be registered in his name to the prejudice of the latter. This allegation is without merit. Accused-appellant makes it appear that complainant’s mother was responsible for the filing of this case against him. This is not so. For that matter, his wife did not testify against him. It was his daughter, complainant, alone who denounced him in court.

Accused-appellant’s claim that the motivation for the filing of this case was the animosity of his wife’s relatives towards him caused by his land-grabbing of their land is likewise without any basis. It may be that his wife’s relatives took advantage of his incarceration and made him sign his waiver of rights over the land.62 But this does not necessarily mean they conspired to persecute him. It is noteworthy that accusedappellant never claimed that the document which he signed (Exh. 3) existed before the filing of the criminal complaint against him or that his wife’s relatives fabricated the charge against him because of his failure to sign the same. Indeed, what accused-appellant’s defense cannot explain is the hymenal laceration sustained by complainant or the steadfastness she has exhibited in pursuing the charge against her own father. It is doubtful that complainant would let herself be embroiled in a petty family dispute in exchange for her honor and dignity. We cannot believe that a young girl, like complainant, would invent a sordid tale of sexual abuse by accused-appellant unless it was the truth.63 Where there is no evidence to show a doubtful reason or improper motive why a prosecution witness should testify against the accused or falsely implicate him in a crime, her testimony is trustworthy.64 Accused-appellant also raises the defense of denial and alibi. But the bare denial of accused-appellant cannot overcome the positive declarations of complainant. Denial, when unsubstantiated by clear and convincing evidence, constitutes negative selfserving evidence which deserves no greater evidentiary value than the testimony of a credible witness who testified on affirmative matters.65 Accused-appellant’s sister, Concepcion Sayo, testified that accused-appellant lived with her family in Bulacan at the time of the rape. No other witness not related to accused-appellant, however, was called to corroborate her claim. We have already held that the defense of alibi cannot prosper if it is established mainly by the accused and his relatives, and not by credible persons. It is not improbable that these witnesses would freely perjure themselves for the sake of their loved ones.66 Accused-appellant’s defense thus fails to convince this Court. C. The foregoing discussion notwithstanding, we think that the imposition of the death penalty by the trial court is erroneous. It is settled that to justify the imposition of the death penalty, both the relationship of the victim and her age must be alleged and proved.67 Thus, in People v. Javier,68 where the victim was alleged to be 16 years old at the time of the commission of the rapes, it was held: . . . Although the victim’s age was not contested by the defense, proof of age of the victim is particularly necessary in this case considering that the victim’s age which was then 16 years old is just two years less than the majority age of 18. In this age of modernism, there is hardly any difference between a 16-year old girl and an 18-year old one insofar as physical features and attributes are concerned. A physically developed 16-year old lass may be mistaken for an 18-year old young woman, in the same manner that a frail and young-looking 18-year old lady may pass as a 16year old minor. Thus, it is in this context that independent proof of the actual age of a rape victim becomes vital and essential so as to remove an iota of doubt that the victim is indeed under 18 years of age as to fall under the qualifying circumstances enumerated in Republic Act No. 7659. In a criminal prosecution especially of cases involving the extreme penalty of death, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime with which an accused is charged must be established by the prosecution in order for said penalty to be upheld. A duly certified certificate of live birth showing complainant’s age, or some other official document on record, such as a school record, has been recognized as competent evidence.69 In this case, although complainant’s minority has been alleged in the information, no independent evidence was presented by the prosecution to prove the same. Complainant did not even state her age at the time of the rape during direct examination; it was only during her cross-examination when she stated that she was 12 years old at the time she was raped by her father.70 Nor was her birth certificate or baptismal certificate or any school record presented by the prosecution to prove the age of Erlanie at the time of the rape. Not even her mother, whose testimony could have been sufficient to prove the age of complainant,71 testified in this case. What was relied upon by the trial court was that fact that the age of the victim was undisputed by the defense.72 It also took judicial notice of the victim’s minority on account of her appearance.73

We do not agree with this conclusion. The trial court can only take judicial notice of the victim’s minority when the latter is, for example, 10 years old or below. Otherwise, the prosecution has the burden of proving the victim’s age at the time of the rape and the absence of denial on the part of accused-appellant does not excuse the prosecution from discharging its burden.74 In a similar case, People v. Tundag,75 in which the trial court took judicial notice of the minority of the victim who was alleged to be 13 years old, we ruled: In this case, judicial notice of the age of the victim is improper, despite the defense counsel’s admission, thereof acceding to the prosecution’s motion. As required by Section 3 of Rule 129, as to any other matters such as age, a hearing is required before courts can take judicial notice of such fact. Generally, the age of the victim may be proven by the birth or baptismal certificate of the victim, or in the absence thereof, upon showing that said documents were lost or destroyed, by other documentary or oral evidence sufficient for the purpose. The prosecution having failed to present evidence as to complainant’s age, accusedappellant can be convicted only of simple rape, for which the penalty is reclusion perpetua. Consequently, the award of civil indemnity in the amount of P75,000.00 made by the trial court cannot be sustained. Such amount can only be awarded if the crime of rape was effectively qualified by any of the circumstances under which the death penalty is authorized by the applicable amendatory laws.76 Accordingly, the civil indemnity awarded to complainant must be reduced to P50,000.00 in consonance with current rulings.77 The award of moral damages in the amount of P50,000.00 to complainant is correct. Moral damages is awarded in rape cases without need of showing that the victim suffered from mental, physical, and psychological trauma as these are too obvious to require recital by the victim during trial.78 In addition to the damages given by the trial court, exemplary damages in the amount of P25,000.00 should likewise be awarded in favor of complainant. Accused-appellant being the father of complainant, such relationship can be appreciated as a generic aggravating circumstance warranting the award of exemplary damages. In rapes committed by fathers against their daughters, such award may be imposed to serve as a deterrent to other parents similarly disposed to commit the same crime.79 WHEREFORE, the decision of the Regional Trial Court, Branch 49, Guagua, Pampanga, finding accused-appellant guilty of the crime of rape is AFFIRMED with the modification that accused-appellant is sentenced to suffer the penalty of reclusion perpetua and to pay complainant Erlanie Rivera the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages. SO ORDERED. Bellosillo, Puno, Vitug, Kapunan, Quisumbing, Pardo, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ.,concur. Davide, Jr., C.J., Melo, Panganiban, and Buena, JJ., abroad on official business. Sandoval-Gutierrez J., on leave.

EN BANC A.M. No. 01-4-03-SC September 13, 2001 RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE TRIAL IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST FORMER PRESIDENT JOSEPH E. ESTRADA SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO, and ATTY. RICARDO ROMULO, petitioners, vs. JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES,oppositors. RESOLUTION MENDOZA, J.: This is a motion for reconsideration of the decision denying petitioners' request for permission to televise and broadcast live the trial of former President Estrada before the Sandiganbayan. The motion was filed by the Secretary of Justice, as one of the petitioners, who argues that there is really no conflict between the right of the people to public information and the freedom of the press, on the one hand, and, on the other, the right of the accused to a fair trial; that if there is a clash between these rights, it must be resolved in favor of the right of the people and the press because the people, as the repository of sovereignty, are entitled to information; and that live media coverage is a safeguard against attempts by any party to use the courts as instruments for the pursuit of selfish interests. On the other hand, former President Joseph E. Estrada reiterates his objection to the live TV and radio coverage of his trial on the ground that its allowance will violate the sub judice rule and that, based on his experience with the impeachment trial, live media coverage will only pave the way for so-called "expert commentary" which can trigger massive demonstrations aimed at pressuring the Sandiganbayan to render a decision one way or the other. Mr. Estrada contends that the right of the people to information may be served through other means less distracting, degrading, and prejudicial than live TV and radio coverage.1âwphi1.nêt The Court has considered the arguments of the parties on this important issue and, after due deliberation, finds no reason to alter or in any way modify its decision prohibiting live or real time broadcast by radio or television of the trial of the former president. By a vote of nine (9) to six (6) of its members,1 the Court denies the motion for reconsideration of the Secretary of Justice. In lieu of live TV and radio coverage of the trial, the Court, by the vote of eight (8) Justices,2 has resolved to order the audio-visual recording of the trial. What follows is the opinion of the majority.lawphil.net Considering the significance of the trial before the Sandiganbayan of former President Estrada and the importance of preserving the records thereof, the Court believes that there should be an audio-visual recording of the proceedings. The recordings will not be for live or real time broadcast but for documentary purposes. Only later will they be available for public showing, after the Sandiganbayan shall have promulgated its decision in every case to which the recording pertains. The master film shall be deposited in the National Museum and the Records Management and Archives Office for historical preservation and exhibition pursuant to law.4 For the purpose of recording the proceedings, cameras will be inconspicuously installed in the courtroom and the movement of TV crews will be regulated, consistent with the dignity and solemnity of the proceedings. The trial shall be recorded in its entirety, except such portions thereof as the Sandiganbayan may decide should not be held public pursuant to Rule 119, §21 of the Revised Rules of Criminal Procedure. No comment shall be included in the documentary except annotations which may be necessary to explain certain scenes which are depicted. The audio-visual recordings shall be made under the supervision and control of the Sandiganbayan or its Division as the case may be. There are several reasons for such televised recording.1awphil.net First, the hearings are of historic significance. They are an affirmation of our commitment to the rule that "the King is under no man, but he is under God and the law." (Quod Rex non debet esse

sub homine, sed sub Deo et Lege.) Second, the Estrada cases involve matters of vital concern to our people who have a fundamental right to know how their government is conducted. This right can be enhanced by audio visual presentation. Third, audio-visual presentation is essential for the education and civic training of the people. Above all, there is the need to keep audio-visual records of the hearings for documentary purposes. The recordings will be useful in preserving the essence of the proceedings in a way that the cold print cannot quite do because it cannot capture the sights and sounds of events. They will be primarily for the use of appellate courts in the event a review of the proceedings, rulings, or decisions of the Sandiganbayan is sought or becomes necessary. The accuracy of the transcripts of stenographic notes taken during the trial can be checked by reference to the tapes. On the other hand, by delaying the release of the tapes for broadcast, concerns that those taking part in the proceedings will be playing to the cameras and will thus be distracted from the proper performance of their roles -- whether as counsel, witnesses, court personnel, or judges -- will be allayed. The possibility that parallel trials before the bar of justice and the bar of public opinion may jeopardize, or even prevent, the just determination of the cases can be minimized. The possibility that judgment will be rendered by the popular tribunal before the court of justice can render its own will be avoided. At the same time, concerns about the regularity and fairness of the trial -- which, it may be assumed, is the concern of those opposed to, as much as of those in favor of, televised trials - will be addressed since the tapes will not be released for public showing until after the decision of the cases by the Sandiganbayan. By delaying the release of the tapes, much of the problem posed by real time TV and radio broadcast will be avoided. Thus, many important purposes for preserving the record of the trial can be served by audio-visual recordings without impairing the right of the accused to a fair trial. Nor is the right of privacy of the accused a bar to the production of such documentary. In Ayer Productions Pty. Ltd. V. Capulong,5 this Court set aside a lower court's injunction restraining the filming of "Four Day Revolution," a documentary film depicting, among other things, the role of then Minister of National Defense Juan Ponce Enrile in the 1986 EDSA people power. This Court held: "A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute matters of a public character."6 No one can prevent the making of a movie based on the trial. But, at least, if a documentary record is made of the proceedings, any movie that may later be produced can be checked for its accuracy against such documentary and any attempt to distort the truth can thus be averted. Indeed, a somewhat similar proposal for documentary recording of celebrated cases or causes célèbres was made was made way back in 1971 by Paul Freund of the Harvard Law School. As he explained: In fairness let me refer to an American experience many of my lay friends found similarly moving. An educational television network filmed a trial in Denver of a Black Panther leader on charges of resisting arrest, and broadcast the document in full, in four installments, several months after the case was concluded -- concluded incidentally, with a verdict of acquittal. No one could witness the trial without a feeling of profound respect for the painstaking way in which the truth was searched for, for the ways whereby law copes with uncertainties and ambiguities through presumptions and burden of proof, and the sense of gravity with which judge and jury carried out their responsibilities. I agree in general with the exclusion of television from the courtroom, for the familiar good reasons. And yet the use of television at a trial for documentary purposes, not for the broadcast of live news, and with the safeguards of completeness and consent, is an educational experiment that I would be prepared to welcome. Properly safeguarded and with suitable commentary, the depiction of an actual trial is an agency of enlightenment that could have few equals in its impact on the public understanding.

Understanding of our legal process, so rarely provided by our educational system, is now a desperate need.7 Professor Freund's observation is as valid today as when it was made thirty years ago. It is perceptive for its recognition of the serious risks posed to the fair administration of justice by live TV and radio broadcasts, especially when emotions are running high on the issues stirred by a case, while at the same time acknowledging the necessity of keeping audio-visual recordings of the proceedings of celebrated cases, for public information and exhibition, after passions have subsided. WHEREFORE, an audio-visual recording of the trial of former President Estrada before the Sandiganbayan is hereby ordered to be made, for the account of the Sandiganbayan, under the following conditions: (a) the trial shall be recorded in its entirety, excepting such portions thereof as the Sandiganbayan may determine should not be held public under Rule 119, §21 of the Rules of Criminal Procedure; (b) cameras shall be installed inconspicuously inside the courtroom and the movement of TV crews shall be regulated consistent with the dignity and solemnity of the proceedings; (c) the audio-visual recordings shall be made for documentary purposes only and shall be made without comment except such annotations of scenes depicted therein as may be necessary to explain them; (d) the live broadcast of the recordings before the Sandiganbayan shall have rendered its decision in all the cases against the former President shall be prohibited under pain of contempt of court and other sanctions in case of violations of the prohibition; (e) to ensure that the conditions are observed, the audio-visual recording of the proceedings shall be made under the supervision and control of the Sandiganbayan or its Division concerned and shall be made pursuant to rules promulgated by it; and (f) simultaneously with the release of the audio-visual recordings for public broadcast, the original thereof shall be deposited in the National Museum and the Records Management and Archives Office for preservation and exhibition in accordance with law. SO ORDERED.

FIRST DIVISION G.R. No. 139789 July 19, 2001 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF POTENCIANO ILUSORIO, ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, JOHN DOES and JANE DOES, respondents. x---------------------------------------------------------x G.R. No. 139808 July 19, 2001 POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, petitioners, vs. HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents. RESOLUTION

Nevertheless, for emphasis, we shall discuss the issues thus: First. Erlinda K. Ilusorio claimed that she was not compelling Potenciano to live with her in consortium and that Potenciano's mental state was not an issue. However, the very root cause of the entire petition is her desire to have her husband's custody.13 Clearly, Erlinda cannot now deny that she wanted Potenciano Ilusorio to live with her. Second. One reason why Erlinda K. Ilusorio sought custody of her husband was that respondents Lin and Sylvia were illegally restraining Potenciano Ilusorio to fraudulently deprive her of property rights out of pure greed.14 She claimed that her two children were using their sick and frail father to sign away Potenciano and Erlinda's property to companies controlled by Lin and Sylvia. She also argued that since Potenciano retired as director and officer of Baguio Country Club and Philippine Oversees Telecommunications, she would logically assume his position and control. Yet, Lin and Sylvia were the ones controlling the corporations.15

PARDO, J.: Once again we see the sad tale of a prominent family shattered by conflicts on expectancy in fabled fortune. On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so lovingly inseparable from her husband some years ago, filed a petition with the Court of Appeals1 for habeas corpus to have custody of her husband in consortium. On April 5, 1999, the Court of Appeals promulgated its decision dismissing the petition for lack of unlawful restraint or detention of the subject, Potenciano Ilusorio. Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the Supreme Court an appeal via certiorari pursuing her desire to have custody of her husband Potenciano Ilusorio.2 This case was consolidated with another case3 filed by Potenciano Ilusorio and his children, Erlinda I. Bildner and Sylvia K. Ilusorio appealing from the order giving visitation rights to his wife, asserting that he never refused to see her. On May 12, 2000, we dismissed the petition for habeas corpus4 for lack of merit, and granted the petition5 to nullify the Court of Appeals' ruling6 giving visitation rights to Erlinda K. Ilusorio.7 What is now before the Court is Erlinda's motion to reconsider the decision.8 On September 20, 2000, we set the case for preliminary conference on October 11, 2000, at 10:00 a. m., without requiring the mandatory presence of the parties. In that conference, the Court laid down the issues to be resolved, to wit: (a) To determine the propriety of a physical and medical examination of petitioner Potenciano Ilusorio; (b) Whether the same is relevant; and (c) If relevant, how the Court will conduct the same.9 The parties extensively discussed the issues. The Court, in its resolution, enjoined the parties and their lawyers to initiate steps towards an amicable settlement of the case through mediation and other means.

The fact of illegal restraint has not been proved during the hearing at the Court of Appeals on March 23, 1999.16Potenciano himself declared that he was not prevented by his children from seeing anybody and that he had no objection to seeing his wife and other children whom he loved. Erlinda highlighted that her husband suffered from various ailments. Thus, Potenciano Ilusorio did not have the mental capacity to decide for himself. Hence, Erlinda argued that Potenciano be brought before the Supreme Court so that we could determine his mental state. We were not convinced that Potenciano Ilusorio was mentally incapacitated to choose whether to see his wife or not. Again, this is a question of fact that has been decided in the Court of Appeals. As to whether the children were in fact taking control of the corporation, these are matters that may be threshed out in a separate proceeding, irrelevant in habeas corpus. Third. Petitioner failed to sufficiently convince the Court why we should not rely on the facts found by the Court of Appeals. Erlinda claimed that the facts mentioned in the decision were erroneous and incomplete. We see no reason why the High Court of the land need go to such length. The hornbook doctrine states that findings of fact of the lower courts are conclusive on the Supreme Court.17 We emphasize, it is not for the Court to weigh evidence all over again.18 Although there are exceptions to the rule,19 Erlinda failed to show that this is an exceptional instance. Fourth. Erlinda states that Article XII of the 1987 Constitution and Articles 68 and 69 of the Family Code support her position that as spouses, they (Potenciano and Erlinda) are duty bound to live together and care for each other. We agree. The law provides that the husband and the wife are obliged to live together, observe mutual love, respect and fidelity.20 The sanction therefor is the "spontaneous, mutual affection between husband and wife and not any legal mandate or court order" to enforce consortium.21 Obviously, there was absence of empathy between spouses Erlinda and Potenciano, having separated from bed and board since 1972. We defined empathy as a shared feeling between husband and wife experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process.

On November 29, 2000, the Court noted the manifestation and compliance of the parties with the resolution of October 11, 2000.10

Marriage is definitely for two loving adults who view the relationship with "amor gignit amorem" respect, sacrifice and a continuing commitment to togetherness, conscious of its value as a sublime social institution.22

On January 31, 2001, the Court denied Erlinda Ilusorio's manifestation and motion praying that Potenciano Ilusorio be produced before the Court and be medically examined by a team of medical experts appointed by the Court.11

On June 28, 2001, Potenciano Ilusorio gave his soul to the Almighty, his Creator and Supreme Judge. Let his soul rest in peace and his survivors continue the much prolonged fracas ex aequo et bono.

On March 27, 2001, we denied with finality Erlinda's motion to reconsider the Court's order of January 31 , 2001.12

IN VIEW WHEREOF, we DENY Erlinda's motion for reconsideration. At any rate, the case has been rendered moot by the death of subject.

The issues raised by Erlinda K. Ilusorio in her motion for reconsideration are mere reiterations of her arguments that have been resolved in the decision.

SO ORDERED.Davide, Jr., C .J ., Puno, Kapunan and Ynares-Santiago, JJ ., concur.

EN BANC G.R. No. 158802 November 17, 2004 IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE VILLA (detained at the New Bilibid Prisons, Muntinlupa City) JUNE DE VILLA, petitioner-relator, vs. THE DIRECTOR, NEW BILIBID PRISONS, respondent.

AFFIRMED with the MODIFICATIONS that he is sentenced to suffer the penalty of reclusión perpetua and ordered to pay the offended party P50,000.00 as civil indemnity; P50,000.00 as moral damages; costs of the suit and to provide support for the child Leahlyn Corales Mendoza. SO ORDERED.10 Three years after the promulgation of our Decision, we are once more faced with the question of Reynaldo de Villa's guilt or innocence.

DECISION YNARES-SANTIAGO, J.: This is a petition for the issuance of a writ of habeas corpus under Rule 102 of the Rules of Court. Petitioner Reynaldo de Villa, joined by his son, petitioner-relator June de Villa, seeks a two-fold relief: First, that respondent Director of Prisons justify the basis for the imprisonment of petitioner Reynaldo de Villa; and second, that petitioner be granted a new trial.1 These reliefs are sought on the basis of purportedly exculpatory evidence, gathered after performing deoxyribonucleic acid (DNA) testing on samples allegedly collected from the petitioner and a child born to the victim of the rape. By final judgment dated February 1, 2001, in People of the Philippines v. Reynaldo de Villa,2 we found petitioner guilty of the rape of Aileen Mendoza, his niece by affinity; sentenced him to suffer the penalty of reclusión perpetua; and ordered him to pay the offended party civil indemnity, moral damages, costs of the suit, and support for Leahlyn Corales Mendoza, the putative child born of the rape. Petitioner is currently serving his sentence at the New Bilibid Prison, Muntinlupa City. As summarized in our Decision dated February 1, 2001, Aileen Mendoza charged petitioner Reynaldo de Villa with rape in an information dated January 9, 1995, filed with the Regional Trial Court of Pasig City. When arraigned on January 26, 1995, petitioner entered a plea of "not guilty."3 During the trial, the prosecution established that sometime in the third week of April 1994, at about 10:00 in the morning, Aileen Mendoza woke up in her family's rented room in Sagad, Pasig, Metro Manila, to find petitioner on top of her. Aileen was then aged 12 years and ten months. She was unable to shout for help because petitioner covered her mouth with a pillow and threatened to kill her. Aileen could not do anything but cry. Petitioner succeeded in inserting his penis inside her vagina. After making thrusting motions with his body, petitioner ejaculated. This encounter allegedly resulted in Aileen's pregnancy, which was noticed by her mother, Leonila Mendoza, sometime in November 1994. When confronted by her mother, Aileen revealed that petitioner raped her. Aileen's parents then brought her to the Pasig Police Station, where they lodged a criminal complaint against petitioner.4 Dr. Rosaline Cosidon, who examined Aileen, confirmed that she was eight months pregnant and found in her hymen healed lacerations at the 5:00 and 8:00 positions. On December 19, 1994, Aileen gave birth to a baby girl whom she named Leahlyn Mendoza.5 In his defense, petitioner alleged that, at the time of the alleged rape, he was already 67 years old. Old age and sickness had rendered him incapable of having an erection. He further averred that Aileen's family had been holding a grudge against him, which accounted for the criminal charges. Finally, he interposed the defense of alibi, claiming that at the time of the incident, he was in his hometown of San Luis, Batangas.6 The trial court found petitioner guilty beyond reasonable doubt of the crime of qualified rape, and sentenced him to death, to indemnify the victim in the amount of P50,000.00, to pay the costs of the suit and to support the child, Leahlyn Mendoza.7

Petitioner-relator in this case, June de Villa, is the son of Reynaldo. He alleges that during the trial of the case, he was unaware that there was a scientific test that could determine once and for all if Reynaldo was the father of the victim's child, Leahlyn. Petitioner-relator was only informed during the pendency of the automatic review of petitioner's case that DNA testing could resolve the issue of paternity.11 This information was apparently furnished by the Free Legal Assistance Group (FLAG) AntiDeath Penalty Task Force, which took over as counsel for petitioner. Thus, petitioner's brief in People v. de Villa sought the conduct of a blood type test and DNA test in order to determine the paternity of the child allegedly conceived as a result of the rape.12 This relief was implicitly denied in our Decision of February 21, 2001. On March 16, 2001, Reynaldo de Villa filed a Motion for Partial Reconsideration of the Decision, wherein he once more prayed that DNA tests be conducted.13 The Motion was denied with finality in a Resolution dated November 20, 2001.14 Hence, the Decision became final and executory on January 16, 2002.15 Petitioner-relator was undaunted by these challenges. Having been informed that DNA tests required a sample that could be extracted from saliva, petitioner-relator asked Billy Joe de Villa, a grandson of Reynaldo de Villa and a classmate of Leahlyn Mendoza, to ask Leahlyn to spit into a new, sterile cup.16 Leahlyn readily agreed and did so. Billy Joe took the sample home and gave it to the petitioner-relator, who immediately labeled the cup as "Container A." Petitioner-relator then gathered samples from four grandchildren of Reynaldo de Villa. These samples were placed in separate containers with distinguishing labels and temporarily stored in a refrigerator prior to transport to the DNA Analysis Laboratory at the National Science Research Institute (NSRI).17 During transport, the containers containing the saliva samples were kept on ice. Petitioner-relator requested the NSRI to conduct DNA testing on the sample given by Leahlyn Mendoza, those given by the grandchildren of Reynaldo de Villa, and that given by Reynaldo de Villa himself. The identities of the donors of the samples, save for the sample given by Reynaldo de Villa, were not made known to the DNA Analysis Laboratory.18 After testing, the DNA Laboratory rendered a preliminary report on March 21, 2003, which showed that Reynaldo de Villa could not have sired any of the children whose samples were tested, due to the absence of a match between the pertinent genetic markers in petitioner's sample and those of any of the other samples, including Leahlyn's.19 Hence, in the instant petition for habeas corpus, petitioner argues as follows: DNA ANALYSIS ON PATERNITY SHOWS CONCLUSIVELY THAT PETITIONER DE VILLA IS NOT THE FATHER OF LEAHLYN MENDOZA; HIS CONVICTION FOR RAPE, BASED ON THE FACT THAT LEAHLYN WAS SIRED AS A RESULT OF THE ALLEGED RAPE, CANNOT STAND AND MUST BE SET ASIDE.20 xxx

On automatic review,8 we found that the date of birth of Aileen's child was medically consistent with the time of the rape. Since it was never alleged that Aileen gave birth to a full-term nine-month old baby, we gave credence to the prosecution's contention that she prematurely gave birth to an eight-month old baby by normal delivery.9 Thus, we affirmed petitioner's conviction for rape, in a Decision the dispositive portion of which reads:

xxx

xxx

A NEW TRIAL TO CONSIDER NEWLY DISCOVERED EVIDENCE IS PROPER AND MAY BE ORDERED BY THIS COURT IN VIEW OF THE RESULTS OF THE DNA TESTS CONDUCTED.21 Considering that the issues are inter-twined, they shall be discussed together.

WHEREFORE, the judgment of the Regional Trial Court, finding accusedappellant guilty beyond reasonable doubt of the crime of rape, is

In brief, petitioner relies upon the DNA evidence gathered subsequent to the trial in order to re-litigate the factual issue of the paternity of the child Leahlyn Mendoza. Petitioner alleges that this issue is crucial, considering that his conviction in 2001 was based on the factual finding that he sired the said child. Since this paternity is now conclusively disproved, he argues that the 2001 conviction must be overturned. In essence, petitioner invokes the remedy of the writ of habeas corpus to collaterally attack the 2001 Decision. The ancillary remedy of a motion for new trial is resorted to solely to allow the presentation of what is alleged to be newly-discovered evidence. This Court is thus tasked to determine, first, the propriety of the issuance of a writ of habeas corpus to release an individual already convicted and serving sentence by virtue of a final and executory judgment; and second, the propriety of granting a new trial under the same factual scenario. The extraordinary writ of habeas corpus has long been a haven of relief for those seeking liberty from any unwarranted denial of freedom of movement. Very broadly, the writ applies "to all cases of illegal confinement or detention by which a person has been deprived of his liberty, or by which the rightful custody of any person has been withheld from the person entitled thereto".22 Issuance of the writ necessitates that a person be illegally deprived of his liberty. In the celebrated case of Villavicencio v. Lukban,23 we stated that "[a]ny restraint which will preclude freedom of action is sufficient."24 The most basic criterion for the issuance of the writ, therefore, is that the individual seeking such relief be illegally deprived of his freedom of movement or placed under some form of illegal restraint. If an individual's liberty is restrained via some legal process, the writ of habeas corpus is unavailing. Concomitant to this principle, the writ of habeas corpus cannot be used to directly assail a judgment rendered by a competent court or tribunal which, having duly acquired jurisdiction, was not deprived or ousted of this jurisdiction through some anomaly in the conduct of the proceedings. Thus, notwithstanding its historic function as the great writ of liberty, the writ of habeas corpus has very limited availability as a post-conviction remedy. In the recent case of Feria v. Court of Appeals,25 we ruled that review of a judgment of conviction is allowed in a petition for the issuance of the writ of habeas corpus only in very specific instances, such as when, as a consequence of a judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in the restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty has been imposed, as such sentence is void as to such excess.26 In this instance, petitioner invokes the writ of habeas corpus to assail a final judgment of conviction, without, however, providing a legal ground on which to anchor his petition. In fine, petitioner alleges neither the deprivation of a constitutional right, the absence of jurisdiction of the court imposing the sentence, or that an excessive penalty has been imposed upon him. In fine, petitioner invokes the remedy of habeas corpus in order to seek the review of findings of fact long passed upon with finality. This relief is far outside the scope of habeas corpus proceedings. In the early case of Abriol v. Homeres,27 for example, this Court stated the general rule that the writ of habeas corpus is not a writ of error, and should not be thus used. The writ of habeas corpus, whereas permitting a collateral challenge of the jurisdiction of the court or tribunal issuing the process or judgment by which an individual is deprived of his liberty, cannot be distorted by extending the inquiry to mere errors of trial courts acting squarely within their jurisdiction.28 The reason for this is explained very simply in the case of Velasco v. Court of Appeals:29 a habeas corpus petition reaches the body, but not the record of the case. 30 A record must be allowed to remain extant, and cannot be revised, modified, altered or amended by the simple expedient of resort to habeas corpus proceedings. Clearly, mere errors of fact or law, which did not have the effect of depriving the trial court of its jurisdiction over the case and the person of the defendant, are not correctible in a petition for the issuance of the writ of habeas corpus; if at all, these errors must be corrected on certiorari or on appeal, in the form and manner prescribed by law.31 In the past, this Court has disallowed the review of a court's appreciation of the evidence in a petition for the issuance of a writ of habeas corpus, as this is not the function of said writ.32 A survey of our decisions in habeas corpus cases demonstrates that, in general, the writ of habeas corpus is a high prerogative writ which furnishes an extraordinary remedy; it may thus be invoked only under extraordinary circumstances.33 We have been categorical in our pronouncements that the writ of habeas corpus is not to be used as a substitute for another, more proper remedy. Resort to the writ of habeas corpus is available only in the limited instances when a judgment is rendered by a court or tribunal devoid of jurisdiction. If, for instance, it can be demonstrated that there was a deprivation of a constitutional right,

the writ can be granted even after an individual has been meted a sentence by final judgment. Thus, in the case of Chavez v. Court of Appeals,34 the writ of habeas corpus was held to be available where an accused was deprived of the constitutional right against selfincrimination. A defect so pronounced as the denial of an accused's constitutional rights results in the absence or loss of jurisdiction, and therefore invalidates the trial and the consequent conviction of the accused. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus.35 Later, in Gumabon v. Director of the Bureau of Prisons,36 this Court ruled that, once a deprivation of a constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention.37Although in Feria v. Court of Appeals38 this Court was inclined to allow the presentation of new evidence in a petition for the issuance of a writ of habeas corpus, this was an exceptional situation. In that case, we laid down the general rule, which states that the burden of proving illegal restraint by the respondent rests on the petitioner who attacks such restraint. Where the return is not subject to exception, that is, where it sets forth a process which, on its face, shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent effect of such process.39 In the recent case of Calvan v. Court of Appeals,40 we summarized the scope of review allowable in a petition for the issuance of the writ of habeas corpus. We ruled that the writ of habeas corpus, although not designed to interrupt the orderly administration of justice, can be invoked by the attendance of a special circumstance that requires immediate action. In such situations, the inquiry on a writ of habeas corpus would be addressed, not to errors committed by a court within its jurisdiction, but to the question of whether the proceeding or judgment under which a person has been restrained is a complete nullity. The probe may thus proceed to check on the power and authority, itself an equivalent test of jurisdiction, of the court or the judge to render the order that so serves as the basis of imprisonment or detention.41 It is the nullity of an assailed judgment of conviction which makes it susceptible to collateral attack through the filing of a petition for the issuance of the writ of habeas corpus. Upon a perusal of the records not merely of this case but of People v. de Villa, we find that the remedy of the writ of habeas corpus is unavailing. First, the denial of a constitutional right has not been alleged by petitioner. As such, this Court is hard-pressed to find legal basis on which to anchor the grant of a writ of habeas corpus. Much as this Court sympathizes with petitioner's plea, a careful scrutiny of the records does not reveal any constitutional right of which the petitioner was unduly deprived. We are aware that other jurisdictions have seen fit to grant the writ of habeas corpus in order to test claims that a defendant was denied effective aid of counsel. 42 In this instance, we note that the record is replete with errors committed by counsel, and it can be alleged that the petitioner was, at trial, denied the effective aid of counsel. The United States Supreme Court requires a defendant alleging incompetent counsel to show that the attorney's performance was deficient under a reasonable standard, and additionally to show that the outcome of the trial would have been different with competent counsel.43 The purpose of the right to effective assistance of counsel is to ensure that the defendant receives a fair trial.44 The U.S. Supreme Court asserts that in judging any claim of ineffective assistance of counsel, one must examine whether counsel's conduct undermined the proper functioning of the adversarial process to such an extent that the trial did not produce a fair and just result.45 The proper measure of attorney performance is "reasonable" under the prevailing professional norms, and the defendant must show that the representation received fell below the objective standard of reasonableness.46 For the petition to succeed, the strong presumption that the counsel's conduct falls within the wide range or reasonable professional assistance must be overcome.47 In the case at bar, it appears that in the middle of the appeal, the petitioner's counsel of record, a certain Atty. Alfonso G. Salvador, suddenly and inexplicably withdrew his appearance as counsel, giving the sole explanation that he was "leaving for the United States for an indefinite period of time by virtue of a petition filed in his favor."48 In the face of this abandonment, petitioner made an impassioned plea that his lawyer be prevented from this withdrawal in a handwritten "Urgent Motion for Reconsideration and Opposition of Counsel's Withdrawal of Appearance with Leave of Court" received by this Court on September 14, 1999.49 Petitioner alleged that his counsel's withdrawal is an "untimely and heartbreaking event", considering that he had placed "all [his] trust and confidence on [his counsel's] unquestionable integrity and dignity."50

While we are sympathetic to petitioner's plight, we do not, however, find that there was such negligence committed by his earlier counsel so as to amount to a denial of a constitutional right. There is likewise no showing that the proceedings were tainted with any other jurisdictional defect. In fine, we find that petitioner invokes the remedy of the petition for a writ of habeas corpus to seek a re-examination of the records of People v. de Villa, without asserting any legal grounds therefor. For all intents and purposes, petitioner seeks a reevaluation of the evidentiary basis for his conviction. We are being asked to reexamine the weight and sufficiency of the evidence in this case, not on its own, but in light of the new DNA evidence that the petitioner seeks to present to this Court. This relief is outside the scope of a habeas corpus petition. The petition for habeas corpus must, therefore, fail. Coupled with the prayer for the issuance of a writ of habeas corpus, petitioner seeks a new trial to re-litigate the issue of the paternity of the child Leahlyn Mendoza. It must be stressed that the issue of Leahlyn Mendoza's paternity is not central to the issue of petitioner's guilt or innocence. The rape of the victim Aileen Mendoza is an entirely different question, separate and distinct from the question of the father of her child. Recently, in the case of People v. Alberio,51 we ruled that the fact or not of the victim's pregnancy and resultant childbirth are irrelevant in determining whether or not she was raped. Pregnancy is not an essential element of the crime of rape. Whether the child which the victim bore was fathered by the purported rapist, or by some unknown individual, is of no moment in determining an individual's guilt. In the instant case, however, we note that the grant of child support to Leahlyn Mendoza indicates that our Decision was based, at least in small measure, on the victim's claim that the petitioner fathered her child. This claim was given credence by the trial court, and, as a finding of fact, was affirmed by this Court on automatic review. The fact of the child's paternity is now in issue, centrally relevant to the civil award of child support. It is only tangentially related to the issue of petitioner's guilt. However, if it can be conclusively determined that the petitioner did not sire Leahlyn Mendoza, this may cast the shadow of reasonable doubt, and allow the acquittal of the petitioner on this basis. Be that as it may, it appears that the petitioner once more relies upon erroneous legal grounds in resorting to the remedy of a motion for new trial. A motion for new trial, under the Revised Rules of Criminal Procedure, is available only for a limited period of time, and for very limited grounds. Under Section 1, Rule 121, of the Revised Rules of Criminal Procedure, a motion for new trial may be filed at any time before a judgment of conviction becomes final, that is, within fifteen (15) days from its promulgation or notice. Upon finality of the judgment, therefore, a motion for new trial is no longer an available remedy. Section 2 of Rule 121 enumerates the grounds for a new trial: SEC. 2. Grounds for a new trial.—The court shall grant a new trial on any of the following grounds: (a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial; (b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. In the case at bar, petitioner anchors his plea on the basis of purportedly "newlydiscovered evidence", i.e., the DNA test subsequently conducted, allegedly excluding petitioner from the child purportedly fathered as a result of the rape. The decision sought to be reviewed in this petition for the issuance of a writ of habeas corpus has long attained finality, and entry of judgment was made as far back as January 16, 2002. Moreover, upon an examination of the evidence presented by the petitioner, we do not find that the DNA evidence falls within the statutory or jurisprudential definition of "newly- discovered evidence". A motion for new trial based on newly-discovered evidence may be granted only if the following requisites are met: (a) that the evidence was discovered after trial; (b) that said evidence could not have been discovered and produced at the trial even with the

exercise of reasonable diligence; (c) that it is material, not merely cumulative, corroborative or impeaching; and (d) that the evidence is of such weight that that, if admitted, it would probably change the judgment.52 It is essential that the offering party exercised reasonable diligence in seeking to locate the evidence before or during trial but nonetheless failed to secure it.53 In this instance, although the DNA evidence was undoubtedly discovered after the trial, we nonetheless find that it does not meet the criteria for "newly-discovered evidence" that would merit a new trial. Such evidence disproving paternity could have been discovered and produced at trial with the exercise of reasonable diligence. Petitioner-relator's claim that he was "unaware" of the existence of DNA testing until the trial was concluded carries no weight with this Court. Lack of knowledge of the existence of DNA testing speaks of negligence, either on the part of petitioner, or on the part of petitioner's counsel. In either instance, however, this negligence is binding upon petitioner. It is a settled rule that a party cannot blame his counsel for negligence when he himself was guilty of neglect.54 A client is bound by the acts of his counsel, including the latter's mistakes and negligence.55 It is likewise settled that relief will not be granted to a party who seeks to be relieved from the effects of the judgment when the loss of the remedy at law was due to his own negligence, or to a mistaken mode of procedure.56 Even with all of the compelling and persuasive scientific evidence presented by petitioner and his counsel, we are not convinced that Reynaldo de Villa is entitled to outright acquittal. As correctly pointed out by the Solicitor General, even if it is conclusively proven that Reynaldo de Villa is not the father of Leahlyn Mendoza, his conviction could, in theory, still stand, with Aileen Mendoza's testimony and positive identification as its bases.57 The Solicitor General reiterates, and correctly so, that the pregnancy of the victim has never been an element of the crime of rape.58Therefore, the DNA evidence has failed to conclusively prove to this Court that Reynaldo de Villa should be discharged. Although petitioner claims that conviction was based solely on a finding of paternity of the child Leahlyn, this is not the case. Our conviction was based on the clear and convincing testimonial evidence of the victim, which, given credence by the trial court, was affirmed on appeal. WHEREFORE, in view of the foregoing, the instant petition for habeas corpus and new trial is DISMISSED for lack of merit. No costs. SO ORDERED. Puno, Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur. Davide, Jr., C.J., and Panganiban, J., joins Carpio and Callejo, Sr., JJ., in their separate opinion. Carpio, J., please see separate concurring opinion. Callejo, Sr., J., please see separate opinion. Corona, J., on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 180906 October 7, 2008 THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,petitioners, vs. RAYMOND MANALO and REYNALDO MANALO, respondents. DECISION PUNO, C.J.: While victims of enforced disappearances are separated from the rest of the world behind secret walls, they are not separated from the constitutional protection of their basic rights. The constitution is an overarching sky that covers all in its protection. The case at bar involves the rights to life, liberty and security in the first petition for a writ of Amparo filed before this Court. This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation to Section 191 of the Rule on the Writ of Amparo, seeking to reverse and set aside on both questions of fact and law, the Decision promulgated by the Court of Appeals in C.A. G.R. AMPARO No. 00001, entitled "Raymond Manalo and Reynaldo Manalo, petitioners, versus The Secretary of National Defense, the Chief of Staff, Armed Forces of the Philippines, respondents." This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining Order (TRO)2 filed before this Court by herein respondents (therein petitioners) on August 23, 2007 to stop herein petitioners (therein respondents) and/or their officers and agents from depriving them of their right to liberty and other basic rights. Therein petitioners also sought ancillary remedies, Protective Custody Orders, Appointment of Commissioner, Inspection and Access Orders, and all other legal and equitable reliefs under Article VIII, Section 5(5)3 of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. In our Resolution dated August 24, 2007, we (1) ordered the Secretary of the Department of National Defense and the Chief of Staff of the AFP, their agents, representatives, or persons acting in their stead, including but not limited to the Citizens Armed Forces Geographical Unit (CAFGU) to submit their Comment; and (2) enjoined them from causing the arrest of therein petitioners, or otherwise restricting, curtailing, abridging, or depriving them of their right to life, liberty, and other basic rights as guaranteed under Article III, Section 1 4 of the 1987 Constitution.5 While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took effect on October 24, 2007. Forthwith, therein petitioners filed a Manifestation and Omnibus Motion to Treat Existing Petition as Amparo Petition, to Admit Supporting Affidavits, and to Grant Interim and Final Amparo Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue the writ commanding therein respondents to make a verified return within the period provided by law and containing the specific matter required by law; (3) they be granted the interim reliefs allowed by the Amparo Rule and all other reliefs prayed for in the petition but not covered by the Amparo Rule; (4) the Court, after hearing, render judgment as required in Sec. 187 of the Amparo Rule; and (5) all other just and equitable reliefs.8 On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a petition under the Amparo Rule and further resolved, viz: WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring them to file with the CA (Court of Appeals) a verified written return within five (5) working days from service of the writ. We REMAND the petition to the CA and designate the Division of Associate Justice Lucas P. Bersamin to conduct the summary hearing on the petition on November 8, 2007 at 2:00 p.m. and decide the petition in accordance with the Rule on the Writ of Amparo.9 On December 26, 2007, the Court of Appeals rendered a decision in favor of therein petitioners (herein respondents), the dispositive portion of which reads, viz: ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.

The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF STAFF are hereby REQUIRED: 1. To furnish to the petitioners and to this Court within five days from notice of this decision all official and unofficial reports of the investigation undertaken in connection with their case, except those already on file herein; 2. To confirm in writing the present places of official assignment of M/Sgt Hilario aka Rollie Castillo and Donald Caigas within five days from notice of this decision. 3. To cause to be produced to this Court all medical reports, records and charts, reports of any treatment given or recommended and medicines prescribed, if any, to the petitioners, to include a list of medical and (sic) personnel (military and civilian) who attended to them from February 14, 2006 until August 12, 2007 within five days from notice of this decision. The compliance with this decision shall be made under the signature and oath of respondent AFP Chief of Staff or his duly authorized deputy, the latter's authority to be express and made apparent on the face of the sworn compliance with this directive. SO ORDERED.10 Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by herein respondents: Respondent Raymond Manalo recounted that about one or two weeks before February 14, 2006, several uniformed and armed soldiers and members of the CAFGU summoned to a meeting all the residents of their barangay in San Idelfonso, Bulacan. Respondents were not able to attend as they were not informed of the gathering, but Raymond saw some of the soldiers when he passed by the barangay hall.11 On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts, fatigue pants and army boots, entered their house and roused him. They asked him if he was Bestre, but his mother, Ester Manalo, replied that he was Raymond, not Bestre. The armed soldier slapped him on both cheeks and nudged him in the stomach. He was then handcuffed, brought to the rear of his house, and forced to the ground face down. He was kicked on the hip, ordered to stand and face up to the light, then forcibly brought near the road. He told his mother to follow him, but three soldiers stopped her and told her to stay.12 Among the men who came to take him, Raymond recognized brothers Michael de la Cruz, Madning de la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all acted as lookout. They were all members of the CAFGU and residing in Manuzon, San Ildefonso, Bulacan. He also recognized brothers Randy Mendoza and Rudy Mendoza, also members of the CAFGU. While he was being forcibly taken, he also saw outside of his house two barangaycouncilors, Pablo Cunanan and Bernardo Lingasa, with some soldiers and armed men.13 The men forced Raymond into a white L300 van. Once inside, he was blindfolded. Before being blindfolded, he saw the faces of the soldiers who took him. Later, in his 18 months of captivity, he learned their names. The one who drove the van was Rizal Hilario alias Rollie Castillo, whom he estimated was about 40 years of age or older. The leader of the team who entered his house and abducted him was "Ganata." He was tall, thin, curly-haired and a bit old. Another one of his abductors was "George" who was tall, thin, white-skinned and about 30 years old.14 The van drove off, then came to a stop. A person was brought inside the van and made to sit beside Raymond. Both of them were beaten up. On the road, he recognized the voice of the person beside him as his brother Reynaldo's. The van stopped several times until they finally arrived at a house. Raymond and Reynaldo were each brought to a different room. With the doors of their rooms left open, Raymond saw several soldiers continuously hitting his brother Reynaldo on the head and other parts of his body with the butt of their guns for about 15 minutes. After which, Reynaldo was brought to his (Raymond's) room and it was his (Raymond's) turn to be beaten up in the other room. The soldiers asked him if he was a member of the New People's Army.

Each time he said he was not, he was hit with the butt of their guns. He was questioned where his comrades were, how many soldiers he had killed, and how many NPA members he had helped. Each time he answered none, they hit him.15 In the next days, Raymond's interrogators appeared to be high officials as the soldiers who beat him up would salute them, call them "sir," and treat them with respect. He was in blindfolds when interrogated by the high officials, but he saw their faces when they arrived and before the blindfold was put on. He noticed that the uniform of the high officials was different from those of the other soldiers. One of those officials was tall and thin, wore white pants, tie, and leather shoes, instead of combat boots. He spoke in Tagalog and knew much about his parents and family, and a habeas corpus case filed in connection with the respondents' abduction.16 While these officials interrogated him, Raymond was not manhandled. But once they had left, the soldier guards beat him up. When the guards got drunk, they also manhandled respondents. During this time, Raymond was fed only at night, usually with left-over and rotten food.17 On the third week of respondents' detention, two men arrived while Raymond was sleeping and beat him up. They doused him with urine and hot water, hit his stomach with a piece of wood, slapped his forehead twice with a .45 pistol, punched him on the mouth, and burnt some parts of his body with a burning wood. When he could no longer endure the torture and could hardly breathe, they stopped. They then subjected Reynaldo to the same ordeal in another room. Before their torturers left, they warned Raymond that they would come back the next day and kill him.18 The following night, Raymond attempted to escape. He waited for the guards to get drunk, then made noise with the chains put on him to see if they were still awake. When none of them came to check on him, he managed to free his hand from the chains and jumped through the window. He passed through a helipad and firing range and stopped near a fishpond where he used stones to break his chains. After walking through a forested area, he came near a river and an Iglesia ni Kristo church. He talked to some women who were doing the laundry, asked where he was and the road to Gapan. He was told that he was in Fort Magsaysay.19 He reached the highway, but some soldiers spotted him, forcing him to run away. The soldiers chased him and caught up with him. They brought him to another place near the entrance of what he saw was Fort Magsaysay. He was boxed repeatedly, kicked, and hit with chains until his back bled. They poured gasoline on him. Then a so-called "Mam" or "Madam" suddenly called, saying that she wanted to see Raymond before he was killed. The soldiers ceased the torture and he was returned inside Fort Magsaysay where Reynaldo was detained.20 For some weeks, the respondents had a respite from all the torture. Their wounds were treated. When the wounds were almost healed, the torture resumed, particularly when respondents' guards got drunk.21 Raymond recalled that sometime in April until May 2006, he was detained in a room enclosed by steel bars. He stayed all the time in that small room measuring 1 x 2 meters, and did everything there, including urinating, removing his bowels, bathing, eating and sleeping. He counted that eighteen people22 had been detained in that bartolina, including his brother Reynaldo and himself.23 For about three and a half months, the respondents were detained in Fort Magsaysay. They were kept in a small house with two rooms and a kitchen. One room was made into the bartolina. The house was near the firing range, helipad and mango trees. At dawn, soldiers marched by their house. They were also sometimes detained in what he only knew as the "DTU."24 At the DTU, a male doctor came to examine respondents. He checked their body and eyes, took their urine samples and marked them. When asked how they were feeling, they replied that they had a hard time urinating, their stomachs were aching, and they felt other pains in their body. The next day, two ladies in white arrived. They also examined respondents and gave them medicines, including orasol, amoxicillin and mefenamic acid. They brought with them the results of respondents' urine test and advised them to drink plenty of water and take their medicine. The two ladies returned a few more times. Thereafter, medicines were sent through the "master" of the DTU, "Master" Del Rosario alias Carinyoso at Puti. Respondents were kept in the DTU for about two weeks. While there, he met a soldier named Efren who said that Gen. Palparan ordered him to monitor and take care of them.25 One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and several other armed men wearing fatigue suits, went to a detachment in Pinaud, San Ildefonso, Bulacan. Respondents were detained for one or two weeks in a big two-

storey house. Hilario and Efren stayed with them. While there, Raymond was beaten up by Hilario's men.26 From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan on board the Revo. They were detained in a big unfinished house inside the compound of "Kapitan" for about three months. When they arrived in Sapang, Gen. Palparan talked to them. They were brought out of the house to a basketball court in the center of the compound and made to sit. Gen. Palparan was already waiting, seated. He was about two arms' length away from respondents. He began by asking if respondents felt well already, to which Raymond replied in the affirmative. He asked Raymond if he knew him. Raymond lied that he did not. He then asked Raymond if he would be scared if he were made to face Gen. Palparan. Raymond responded that he would not be because he did not believe that Gen. Palparan was an evil man.27 Raymond narrated his conversation with Gen. Palparan in his affidavit, viz: Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba natatakot sa akin?" Sumagot akong, "Siyempre po, natatakot din..." Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na mabuhay, basta't sundin n'yo ang lahat ng sasabihin ko... sabihin mo sa magulang mo - huwag pumunta sa mga rali, sa hearing, sa Karapatan at sa Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat sa bahay na huwag paloko doon. Tulungan kami na kausapin si Bestre na sumuko na sa gobyerno."28 Respondents agreed to do as Gen. Palparan told them as they felt they could not do otherwise. At about 3:00 in the morning, Hilario, Efren and the former's men - the same group that abducted them - brought them to their parents' house. Raymond was shown to his parents while Reynaldo stayed in the Revo because he still could not walk. In the presence of Hilario and other soldiers, Raymond relayed to his parents what Gen. Palparan told him. As they were afraid, Raymond's parents acceded. Hilario threatened Raymond's parents that if they continued to join human rights rallies, they would never see their children again. The respondents were then brought back to Sapang.29 When respondents arrived back in Sapang, Gen. Palparan was about to leave. He was talking with the four "masters" who were there: Arman, Ganata, Hilario and Cabalse.30 When Gen. Palparan saw Raymond, he called for him. He was in a big white vehicle. Raymond stood outside the vehicle as Gen. Palparan told him to gain back his strength and be healthy and to take the medicine he left for him and Reynaldo. He said the medicine was expensive at Php35.00 each, and would make them strong. He also said that they should prove that they are on the side of the military and warned that they would not be given another chance.31 During his testimony, Raymond identified Gen. Palparan by his picture.32 One of the soldiers named Arman made Raymond take the medicine left by Gen. Palparan. The medicine, named "Alive," was green and yellow. Raymond and Reynaldo were each given a box of this medicine and instructed to take one capsule a day. Arman checked if they were getting their dose of the medicine. The "Alive" made them sleep each time they took it, and they felt heavy upon waking up.33 After a few days, Hilario arrived again. He took Reynaldo and left Raymond at Sapang. Arman instructed Raymond that while in Sapang, he should introduce himself as "Oscar," a military trainee from Sariaya, Quezon, assigned in Bulacan. While there, he saw again Ganata, one of the men who abducted him from his house, and got acquainted with other military men and civilians.34 After about three months in Sapang, Raymond was brought to Camp Tecson under the 24th Infantry Battalion. He was fetched by three unidentified men in a big white vehicle. Efren went with them. Raymond was then blindfolded. After a 30-minute ride, his blindfold was removed. Chains were put on him and he was kept in the barracks.35 The next day, Raymond's chains were removed and he was ordered to clean outside the barracks. It was then he learned that he was in a detachment of the Rangers. There were many soldiers, hundreds of them were training. He was also ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn Cadapan from Laguna. She told him that she was a student of the University of the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had been subjected to severe

torture and raped. She was crying and longing to go home and be with her parents. During the day, her chains were removed and she was made to do the laundry.36 After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other captives, Karen Empeño and Manuel Merino, arrived. Karen and Manuel were put in the room with "Allan" whose name they later came to know as Donald Caigas, called "master" or "commander" by his men in the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At times, Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their chains were removed, but were put back on at night. They were threatened that if they escaped, their families would all be killed.37 On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should be thankful they were still alive and should continue along their "renewed life." Before the hearing of November 6 or 8, 2006, respondents were brought to their parents to instruct them not to attend the hearing. However, their parents had already left for Manila. Respondents were brought back to Camp Tecson. They stayed in that camp from September 2006 to November 2006, and Raymond was instructed to continue using the name "Oscar" and holding himself out as a military trainee. He got acquainted with soldiers of the 24th Infantry Battalion whose names and descriptions he stated in his affidavit.38 On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a camp of the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They stayed in that camp until May 8, 2007. Some soldiers of the battalion stayed with them. While there, battalion soldiers whom Raymond knew as "Mar" and "Billy" beat him up and hit him in the stomach with their guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all made to clean, cook, and help in raising livestock.39 Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers brought him and Manuel with them to take and kill all sympathizers of the NPA. They were brought to Barangay Bayan-bayanan, Bataan where he witnessed the killing of an old man doing kaingin. The soldiers said he was killed because he had a son who was a member of the NPA and he coddled NPA members in his house.40 Another time, in another "Operation Lubog," Raymond was brought to Barangay Orion in a house where NPA men stayed. When they arrived, only the old man of the house who was sick was there. They spared him and killed only his son right before Raymond's eyes.41 From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a safehouse near the sea. Caigas and some of his men stayed with them. A retired army soldier was in charge of the house. Like in Limay, the five detainees were made to do errands and chores. They stayed in Zambales from May 8 or 9, 2007 until June 2007.42 In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel were tasked to bring food to detainees brought to the camp. Raymond narrated what he witnessed and experienced in the camp, viz: Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si Donald na inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni Donald na kung mayroon man kaming makita o marinig, walang nangyari. Kinaumagahan, nakita naming ang bangkay ng isa sa mga bihag na dinala sa kampo. Mayroong binuhos sa kanyang katawan at ito'y sinunog. Masansang ang amoy. Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng kampo. May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas. Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila sa labas ng kubo, piniringan, ikinadena at labis na binugbog. Nakita kong nakatakas ang isa sa kanila at binaril siya ng sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay nila iyong isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito. Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang mga bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng bakod. Kinaumagahan nakita kong mayroong sinilaban, at napakamasangsang ang amoy.

May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila. Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita. xxx xxx xxx Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel. Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi. Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag na raw naming hanapin ang dalawang babae at si Manuel, dahil magkakasama na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo ay magbagong buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi na kami kinakadena.43 On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan, ostensibly to raise poultry for Donald (Caigas). Caigas told respondents to also farm his land, in exchange for which, he would take care of the food of their family. They were also told that they could farm a small plot adjoining his land and sell their produce. They were no longer put in chains and were instructed to use the names Rommel (for Raymond) and Rod (for Reynaldo) and represent themselves as cousins from Rizal, Laguna.44 Respondents started to plan their escape. They could see the highway from where they stayed. They helped farm adjoining lands for which they were paid Php200.00 or Php400.00 and they saved their earnings. When they had saved Php1,000.00 each, Raymond asked a neighbor how he could get a cellular phone as he wanted to exchange text messages with a girl who lived nearby. A phone was pawned to him, but he kept it first and did not use it. They earned some more until they had saved Php1,400.00 between them. There were four houses in the compound. Raymond and Reynaldo were housed in one of them while their guards lived in the other three. Caigas entrusted respondents to Nonong, the head of the guards. Respondents' house did not have electricity. They used a lamp. There was no television, but they had a radio. In the evening of August 13, 2007, Nonong and his cohorts had a drinking session. At about 1:00 a.m., Raymond turned up the volume of the radio. When none of the guards awoke and took notice, Raymond and Reynaldo proceeded towards the highway, leaving behind their sleeping guards and barking dogs. They boarded a bus bound for Manila and were thus freed from captivity.45 Reynaldo also executed an affidavit affirming the contents of Raymond's affidavit insofar as they related to matters they witnessed together. Reynaldo added that when they were taken from their house on February 14, 2006, he saw the faces of his abductors before he was blindfolded with his shirt. He also named the soldiers he got acquainted with in the 18 months he was detained. When Raymond attempted to escape from Fort Magsaysay, Reynaldo was severely beaten up and told that they were indeed members of the NPA because Raymond escaped. With a .45 caliber pistol, Reynaldo was hit on the back and punched in the face until he could no longer bear the pain. At one point during their detention, when Raymond and Reynaldo were in Sapang, Reynaldo was separated from Raymond and brought to Pinaud by Rizal Hilario. He was kept in the house of Kapitan, a friend of Hilario, in a mountainous area. He was instructed to use the name "Rodel" and to represent himself as a military trainee from Meycauayan, Bulacan. Sometimes, Hilario brought along Reynaldo in his trips. One time, he was brought to a market in San Jose, del Monte, Bulacan and made to wait in the vehicle while Hilario was buying. He was also brought to Tondo, Manila where Hilario delivered boxes of "Alive" in different houses. In these trips, Hilario drove a black and red vehicle. Reynaldo was blindfolded while still in Bulacan, but allowed to remove the blindfold once outside the province. In one of their trips, they passed by Fort Magsaysay and Camp Tecson where Reynaldo saw the sign board, "Welcome to Camp Tecson."46

Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected with the Medical Action Group, an organization handling cases of human rights violations, particularly cases where torture was involved. He was requested by an NGO to conduct medical examinations on the respondents after their escape. He first asked them about their ordeal, then proceeded with the physical examination. His findings showed that the scars borne by respondents were consistent with their account of physical injuries inflicted upon them. The examination was conducted on August 15, 2007, two days after respondents' escape, and the results thereof were reduced into writing. Dr. Molino took photographs of the scars. He testified that he followed the Istanbul Protocol in conducting the examination.47 Petitioners dispute respondents' account of their alleged abduction and torture. In compliance with the October 25, 2007 Resolution of the Court, they filed a Return of the Writ of Amparo admitting the abduction but denying any involvement therein, viz: 13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested, forcibly abducted, detained, held incommunicado, disappeared or under the custody by the military. This is a settled issue laid to rest in the habeas corpus case filed in their behalf by petitioners' parents before the Court of Appeals in C.A.-G.R. SP No. 94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the 24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon, in his capacity as the Commanding General of the Philippine Army, and members of the Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza. The respondents therein submitted a return of the writ... On July 4, 2006, the Court of Appeals dropped as party respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding General of the Philippine Army, and on September 19, 2006, Maj. (sic) Jovito S. Palparan, then Commanding General, 7th Infantry Division, Philippine Army, stationed at Fort Magsaysay, Palayan City, Nueva Ecija, upon a finding that no evidence was introduced to establish their personal involvement in the taking of the Manalo brothers. In a Decision dated June 27, 2007..., it exonerated M/Sgt. Rizal Hilario aka Rollie Castillo for lack of evidence establishing his involvement in any capacity in the disappearance of the Manalo brothers, although it held that the remaining respondents were illegally detaining the Manalo brothers and ordered them to release the latter.48 Attached to the Return of the Writ was the affidavit of therein respondent (herein petitioner) Secretary of National Defense, which attested that he assumed office only on August 8, 2007 and was thus unaware of the Manalo brothers' alleged abduction. He also claimed that: 7. The Secretary of National Defense does not engage in actual military directional operations, neither does he undertake command directions of the AFP units in the field, nor in any way micromanage the AFP operations. The principal responsibility of the Secretary of National Defense is focused in providing strategic policy direction to the Department (bureaus and agencies) including the Armed Forces of the Philippines; 8. In connection with the Writ of Amparo issued by the Honorable Supreme Court in this case, I have directed the Chief of Staff, AFP to institute immediate action in compliance with Section 9(d) of the Amparo Rule and to submit report of such compliance... Likewise, in a Memorandum Directive also dated October 31, 2007, I have issued a policy directive addressed to the Chief of Staff, AFP that the AFP should adopt the following rules of action in the event the Writ of Amparo is issued by a competent court against any members of the AFP:

(4) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; (5) to identify and apprehend the person or persons involved in the death or disappearance; and (6) to bring the suspected offenders before a competent court.49 Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the Return of the Writ, attesting that he received the above directive of therein respondent Secretary of National Defense and that acting on this directive, he did the following: 3.1. As currently designated Chief of Staff, Armed Forces of the Philippines (AFP), I have caused to be issued directive to the units of the AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of the petitioners. 3.2. I have caused the immediate investigation and submission of the result thereof to Higher headquarters and/or direct the immediate conduct of the investigation on the matter by the concerned unit/s, dispatching Radio Message on November 05, 2007, addressed to the Commanding General, Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A Copy of the Radio Message is attached as ANNEX "3" of this Affidavit. 3.3. We undertake to provide result of the investigations conducted or to be conducted by the concerned unit relative to the circumstances of the alleged disappearance of the persons in whose favor the Writ of Amparohas been sought for as soon as the same has been furnished Higher headquarters. 3.4. A parallel investigation has been directed to the same units relative to another Petition for the Writ of Amparo (G.R. No. 179994) filed at the instance of relatives of a certain Cadapan and Empeño pending before the Supreme Court. 3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to establish the surrounding circumstances of the disappearances of the petitioners and to bring those responsible, including any military personnel if shown to have participated or had complicity in the commission of the complained acts, to the bar of justice, when warranted by the findings and the competent evidence that may be gathered in the process.50 Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another Amparo case in this Court, involving Cadapan, Empeño and Merino, which averred among others, viz: 10) Upon reading the allegations in the Petition implicating the 24th Infantry Batallion detachment as detention area, I immediately went to the 24th IB detachment in Limay, Bataan and found no untoward incidents in the area nor any detainees by the name of Sherlyn Cadapan, Karen Empeño and Manuel Merino being held captive;

(1) to verify the identity of the aggrieved party;

11) There was neither any reports of any death of Manuel Merino in the 24th IB in Limay, Bataan;

(2) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible;

12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the Philippine National Police, Limay, Bataan regarding the alleged detentions or deaths and were informed that none was reported to their good office;

(3) to identify witnesses and obtain statements from them concerning the death or disappearance;

13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into the alleged beachhouse in Iba, Zambales also alleged to be a detention place where Sherlyn Cadapan, Karen Empeño and Manuel Merino were detained. As per the inquiry, however, no such beachhouse was used as a

detention place found to have been used by armed men to detain Cadapan, Empeño and Merino.51 It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and other persons implicated by therein petitioners could not be secured in time for the submission of the Return and would be subsequently submitted.52 Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U. Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army, based in Fort Magsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction of this Division covers Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry Division.54 On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7th Infantry Division, Maj. Gen. Jovito Palaran,55 through his Assistant Chief of Staff,56 to investigate the alleged abduction of the respondents by CAFGU auxiliaries under his unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; ex-CAA Marcelo de la Cruz aka Madning; and a civilian named Rudy Mendoza. He was directed to determine: (1) the veracity of the abduction of Raymond and Reynaldo Manalo by the alleged elements of the CAFGU auxiliaries; and (2) the administrative liability of said auxiliaries, if any.57 Jimenez testified that this particular investigation was initiated not by a complaint as was the usual procedure, but because the Commanding General saw news about the abduction of the Manalo brothers on the television, and he was concerned about what was happening within his territorial jurisdiction.58 Jimenez summoned all six implicated persons for the purpose of having them execute sworn statements and conducting an investigation on May 29, 2006.59 The investigation started at 8:00 in the morning and finished at 10:00 in the evening.60 The investigating officer, Technical Sgt. Eduardo Lingad, took the individual sworn statements of all six persons on that day. There were no other sworn statements taken, not even of the Manalo family, nor were there other witnesses summoned and investigated61 as according to Jimenez, the directive to him was only to investigate the six persons.62 Jimenez was beside Lingad when the latter took the statements.63 The six persons were not known to Jimenez as it was in fact his first time to meet them.64 During the entire time that he was beside Lingad, a subordinate of his in the Office of the Provost Marshall, Jimenez did not propound a single question to the six persons.65 Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo Mendoza and Rudy Mendoza had to come back the next day to sign their statements as the printing of their statements was interrupted by a power failure. Jimenez testified that the two signed on May 30, 2006, but the jurats of their statements indicated that they were signed on May 29, 2006.66 When the Sworn Statements were turned over to Jimenez, he personally wrote his investigation report. He began writing it in the afternoon of May 30, 2006 and finished it on June 1, 2006.67 He then gave his report to the Office of the Chief of Personnel.68 As petitioners largely rely on Jimenez's Investigation Report dated June 1, 2006 for their evidence, the report is herein substantially quoted:

they claimed that those who abducted the Manalo brothers are members of the Military and CAFGU. Subject vehemently denied any participation or involvement on the abduction of said victims. b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in (Exhibit "C") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo being his neighbors are active members/sympathizers of the CPP/NPA and he also knows their elder Rolando Manalo @ KA BESTRE of being an NPA Leader operating in their province. That at the time of the alleged abduction of the two (2) brothers and for accusing him to be one of the suspects, he claims that on February 14, 2006, he was one of those working at the concrete chapel being constructed nearby his residence. He claims further that he just came only to know about the incident on other day (15 Feb 06) when he was being informed by Kagawad Pablo Kunanan. That subject CAA vehemently denied any participation about the incident and claimed that they only implicated him because he is a member of the CAFGU. c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit "O") states that he is a resident of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a member of CAFGU based at Biak na Bato Detachment. That being a neighbor, he was very much aware about the background of the two (2) brothers Raymond and Reynaldo as active supporters of the CPP NPA in their Brgy. and he also knew their elder brother "KUMANDER BESTRE" TN: Rolando Manalo. Being one of the accused, he claims that on 14 February 2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house of his aunt and he learned only about the incident when he arrived home in their place. He claims further that the only reason why they implicated him was due to the fact that his mother has filed a criminal charge against their brother Rolando Manalo @ KA BESTRE who is an NPA Commander who killed his father and for that reason they implicated him in support of their brother. Subject CAA vehemently denied any involvement on the abduction of said Manalo brothers. d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit "E") states that he is a resident of Brgy. Marungko, Angat, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to him being his barriomate when he was still unmarried and he knew them since childhood. Being one of the accused, he claims that on 14 February 2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He claims that he was being informed only about the incident lately and he was not aware of any reason why the two (2) brothers were being abducted by alleged members of the military and CAFGU. The only reason he knows why they implicated him was because there are those people who are angry with their family particularly victims of summary execution (killing) done by their brother @ KA Bestre Rolando Manalo who is an NPA leader. He claims further that it was their brother @ KA BESTRE who killed his father and he was living witness to that incident. Subject civilian vehemently denied any involvement on the abduction of the Manalo brothers.

4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who were forcibly taken from their respective homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14 February 2006 by unidentified armed men and thereafter were forcibly disappeared. After the said incident, relatives of the victims filed a case for Abduction in the civil court against the herein suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the Citizen Armed Forces Geographical Unit (CAFGU).

e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit "F") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based at Biak na Bato, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to him being their barrio mate. He claims further that they are active supporters of CPP/NPA and that their brother Rolando Manalo @ KA BESTRE is an NPA leader. Being one of the accused, he claims that on 14 February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan. That he vehemently denied any participation of the alleged abduction of the two (2) brothers and learned only about the incident when rumors reached him by his barrio mates. He claims that his implication is merely fabricated because of his relationship to Roman and Maximo who are his brothers.

a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in (Exhibit "B") states that he was at Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso, Bulacan doing the concrete building of a church located nearby his residence, together with some neighbor thereat. He claims that on 15 February 2006, he was being informed by Brgy. Kagawad Pablo Umayan about the abduction of the brothers Raymond and Reynaldo Manalo. As to the allegation that he was one of the suspects, he claims that they only implicated him because he was a CAFGU and that

f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in (Exhibit "G") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a CAFGU member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that he knew very well the brothers Raymond and Reynaldo Manalo in their barangay for having been the Tanod Chief for twenty (20) years. He alleged further that they are active supporters or sympathizers of the CPP/NPA and whose elder brother Rolando Manalo @ KA BESTRE is an

III. BACKGROUND OF THE CASE

NPA leader operating within the area. Being one of the accused, he claims that on 14 Feb 2006 he was helping in the construction of their concrete chapel in their place and he learned only about the incident which is the abduction of Raymond and Reynaldo Manalo when one of the Brgy. Kagawad in the person of Pablo Cunanan informed him about the matter. He claims further that he is truly innocent of the allegation against him as being one of the abductors and he considers everything fabricated in order to destroy his name that remains loyal to his service to the government as a CAA member. IV. DISCUSSION 5. Based on the foregoing statements of respondents in this particular case, the proof of linking them to the alleged abduction and disappearance of Raymond and Reynaldo Manalo that transpired on 14 February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, is unsubstantiated. Their alleged involvement theretofore to that incident is considered doubtful, hence, no basis to indict them as charged in this investigation. Though there are previous grudges between each families (sic) in the past to quote: the killing of the father of Randy and Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo, this will not suffice to establish a fact that they were the ones who did the abduction as a form of revenge. As it was also stated in the testimony of other accused claiming that the Manalos are active sympathizers/supporters of the CPP/NPA, this would not also mean, however, that in the first place, they were in connivance with the abductors. Being their neighbors and as members of CAFGU's, they ought to be vigilant in protecting their village from any intervention by the leftist group, hence inside their village, they were fully aware of the activities of Raymond and Reynaldo Manalo in so far as their connection with the CPP/NPA is concerned. V. CONCLUSION 6. Premises considered surrounding this case shows that the alleged charges of abduction committed by the above named respondents has not been established in this investigation. Hence, it lacks merit to indict them for any administrative punishment and/or criminal liability. It is therefore concluded that they are innocent of the charge.

CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE COURT OF APPEALS ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND REPORTS OF ANY TREATMENT GIVEN OR RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY AND CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.70 The case at bar is the first decision on the application of the Rule on the Writ of Amparo (Amparo Rule). Let us hearken to its beginning. The adoption of the Amparo Rule surfaced as a recurring proposition in the recommendations that resulted from a two-day National Consultative Summit on Extrajudicial Killings and Enforced Disappearances sponsored by the Court on July 1617, 2007. The Summit was "envisioned to provide a broad and fact-based perspective on the issue of extrajudicial killings and enforced disappearances,"71 hence "representatives from all sides of the political and social spectrum, as well as all the stakeholders in the justice system"72 participated in mapping out ways to resolve the crisis. On October 24, 2007, the Court promulgated the Amparo Rule "in light of the prevalence of extralegal killing and enforced disappearances."73 It was an exercise for the first time of the Court's expanded power to promulgate rules to protect our people's constitutional rights, which made its maiden appearance in the 1987 Constitution in response to the Filipino experience of the martial law regime.74 As the Amparo Rule was intended to address the intractable problem of "extralegal killings" and "enforced disappearances," its coverage, in its present form, is confined to these two instances or to threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e., without legal safeguards or judicial proceedings."75 On the other hand, "enforced disappearances" are "attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law."76 The writ of Amparo originated in Mexico. "Amparo" literally means "protection" in Spanish.77 In 1837, de Tocqueville's Democracy in America became available in Mexico and stirred great interest. Its description of the practice of judicial review in the U.S. appealed to many Mexican jurists.78 One of them, Manuel Crescencio Rejón, drafted a constitutional provision for his native state, Yucatan,79 which granted judges the power to protect all persons in the enjoyment of their constitutional and legal rights. This idea was incorporated into the national constitution in 1847, viz:

VI. RECOMMENDATIONS 7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated from the case. 8. Upon approval, this case can be dropped and closed.69 In this appeal under Rule 45, petitioners question the appellate court's assessment of the foregoing evidence and assail the December 26, 2007 Decision on the following grounds, viz: I. THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE, UNCORROBORATED, CONTRADICTED, AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND MANALO. II. THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH TO THE MANALO BROTHER(S) AND TO THE COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL REPORTS OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE CASTILLO AND DONALD

The federal courts shall protect any inhabitant of the Republic in the exercise and preservation of those rights granted to him by this Constitution and by laws enacted pursuant hereto, against attacks by the Legislative and Executive powers of the federal or state governments, limiting themselves to granting protection in the specific case in litigation, making no general declaration concerning the statute or regulation that motivated the violation.80 Since then, the protection has been an important part of Mexican constitutionalism.81 If, after hearing, the judge determines that a constitutional right of the petitioner is being violated, he orders the official, or the official's superiors, to cease the violation and to take the necessary measures to restore the petitioner to the full enjoyment of the right in question. Amparo thus combines the principles of judicial review derived from the U.S. with the limitations on judicial power characteristic of the civil law tradition which prevails in Mexico. It enables courts to enforce the constitution by protecting individual rights in particular cases, but prevents them from using this power to make law for the entire nation.82 The writ of Amparo then spread throughout the Western Hemisphere, gradually evolving into various forms, in response to the particular needs of each country.83 It became, in the words of a justice of the Mexican Federal Supreme Court, one piece of Mexico's self-attributed "task of conveying to the world's legal heritage that institution which, as a shield of human dignity, her own painful history conceived."84 What began as a protection against acts or omissions of public authorities in violation of constitutional rights later evolved for several purposes: (1) Amparo libertad for the protection of personal freedom, equivalent to the habeas corpus writ; (2) Amparo contra leyes for the judicial review of the constitutionality of statutes; (3) Amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) Amparo administrativo for the judicial review of administrative actions;

and (5) Amparo agrario for the protection of peasants' rights derived from the agrarian reform process.85

Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz:

In Latin American countries, except Cuba, the writ of Amparo has been constitutionally adopted to protect against human rights abuses especially committed in countries under military juntas. In general, these countries adopted an all-encompassing writ to protect the whole gamut of constitutional rights, including socio-economic rights.86 Other countries like Colombia, Chile, Germany and Spain, however, have chosen to limit the protection of the writ of Amparo only to some constitutional guarantees or fundamental rights.87

Section 1. Petition. - The petition for a writ of Amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo, several of the above Amparo protections are guaranteed by our charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The Clause accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987 Constitution.88 The Clause is an offspring of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v. Madison.89 While constitutional rights can be protected under the Grave Abuse Clause through remedies of injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under Rule 102,90 these remedies may not be adequate to address the pestering problem of extralegal killings and enforced disappearances. However, with the swiftness required to resolve a petition for a writ of Amparo through summary proceedings and the availability of appropriate interim and permanent reliefs under the Amparo Rule, this hybrid writ of the common law and civil law traditions - borne out of the Latin American and Philippine experience of human rights abuses - offers a better remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.91 The writ of Amparo serves both preventive and curative roles in addressing the problem of extralegal killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the commission of these offenses; it is curative in that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to subsequent investigation and action. In the long run, the goal of both the preventive and curative roles is to deter the further commission of extralegal killings and enforced disappearances. In the case at bar, respondents initially filed an action for "Prohibition, Injunction, and Temporary Restraining Order"92 to stop petitioners and/or their officers and agents from depriving the respondents of their right to liberty and other basic rights on August 23, 2007,93 prior to the promulgation of the Amparo Rule. They also sought ancillary remedies including Protective Custody Orders, Appointment of Commissioner, Inspection and Access Orders and other legal and equitable remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. When the Amparo Rule came into effect on October 24, 2007, they moved to have their petition treated as an Amparo petition as it would be more effective and suitable to the circumstances of the Manalo brothers' enforced disappearance. The Court granted their motion.

The writ shall cover extralegal killings and enforced disappearances or threats thereof. (emphasis supplied) Sections 17 and 18, on the other hand, provide for the degree of proof required, viz: Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their claims by substantial evidence. xxx xxx xxx Sec. 18. Judgment. - ... If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (emphases supplied) Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.95 After careful perusal of the evidence presented, we affirm the findings of the Court of Appeals that respondents were abducted from their houses in Sito Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan on February 14, 2006 and were continuously detained until they escaped on August 13, 2007. The abduction, detention, torture, and escape of the respondents were narrated by respondent Raymond Manalo in a clear and convincing manner. His account is dotted with countless candid details of respondents' harrowing experience and tenacious will to escape, captured through his different senses and etched in his memory. A few examples are the following: "Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel." 96 "(N)ilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel."97 "May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas."98 "Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato para tanggalin ang mga kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako makakakuha ng cell phone; sabi ko gusto kong i-text ang isang babae na nakatira sa malapit na lugar."100 We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalo's affidavit and testimony, viz:

With this backdrop, we now come to the arguments of the petitioner. Petitioners' first argument in disputing the Decision of the Court of Appeals states, viz:

...the abduction was perpetrated by armed men who were sufficiently identified by the petitioners (herein respondents) to be military personnel and CAFGU auxiliaries. Raymond recalled that the six armed men who barged into his house through the rear door were military men based on their attire of fatigue pants and army boots, and the CAFGU auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, all members of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served as lookouts during the abduction. Raymond was sure that three of the six military men were Ganata, who headed the abducting team, Hilario, who drove the van, and George. Subsequent incidents of their long captivity, as narrated by the petitioners, validated their assertion of the participation of the elements of the 7th Infantry Division, Philippine Army, and their CAFGU auxiliaries.

The Court of Appeals seriously and grievously erred in believing and giving full faith and credit to the incredible uncorroborated, contradicted, and obviously scripted, rehearsed and self-serving affidavit/testimony of herein respondent Raymond Manalo.94

We are convinced, too, that the reason for the abduction was the suspicion that the petitioners were either members or sympathizers of the NPA, considering that the abductors were looking for Ka Bestre, who turned out to be Rolando, the brother of petitioners.

In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners' cause of action, to determine whether the evidence presented is metalstrong to satisfy the degree of proof required.

The efforts exerted by the Military Command to look into the abduction were, at best, merely superficial. The investigation of the Provost Marshall of the 7th Infantry Division focused on the one-sided version of the CAFGU auxiliaries involved. This one-sidedness might be due to the fact that the Provost Marshall could delve only into the participation of military

personnel, but even then the Provost Marshall should have refrained from outrightly exculpating the CAFGU auxiliaries he perfunctorily investigated... Gen. Palparan's participation in the abduction was also established. At the very least, he was aware of the petitioners' captivity at the hands of men in uniform assigned to his command. In fact, he or any other officer tendered no controversion to the firm claim of Raymond that he (Gen. Palparan) met them in person in a safehouse in Bulacan and told them what he wanted them and their parents to do or not to be doing. Gen. Palparan's direct and personal role in the abduction might not have been shown but his knowledge of the dire situation of the petitioners during their long captivity at the hands of military personnel under his command bespoke of his indubitable command policy that unavoidably encouraged and not merely tolerated the abduction of civilians without due process of law and without probable cause. In the habeas proceedings, the Court, through the Former Special Sixth Division (Justices Buzon, chairman; Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr., member/ponente.) found no clear and convincing evidence to establish that M/Sgt. Rizal Hilario had anything to do with the abduction or the detention. Hilario's involvement could not, indeed, be then established after Evangeline Francisco, who allegedly saw Hilario drive the van in which the petitioners were boarded and ferried following the abduction, did not testify. (See the decision of the habeas proceedings at rollo, p. 52) However, in this case, Raymond attested that Hilario drove the white L-300 van in which the petitioners were brought away from their houses on February 14, 2006. Raymond also attested that Hilario participated in subsequent incidents during the captivity of the petitioners, one of which was when Hilario fetched them from Fort Magsaysay on board a Revo and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan where they were detained for at least a week in a house of strong materials (Exhibit D, rollo, p. 205) and then Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on board the Revo, to an unfinished house inside the compound of Kapitan where they were kept for more or less three months. (Exhibit D, rollo, p. 205) It was there where the petitioners came face to face with Gen. Palparan. Hilario and Efren also brought the petitioners one early morning to the house of the petitioners' parents, where only Raymond was presented to the parents to relay the message from Gen. Palparan not to join anymore rallies. On that occasion, Hilario warned the parents that they would not again see their sons should they join any rallies to denounce human rights violations. (Exhibit D, rollo, pp. 205-206) Hilario was also among four Master Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen. Palparan conversed on the occasion when Gen. Palparan required Raymond to take the medicines for his health. (Exhibit D, rollo, p. 206) There were other occasions when the petitioners saw that Hilario had a direct hand in their torture. It is clear, therefore, that the participation of Hilario in the abduction and forced disappearance of the petitioners was established. The participation of other military personnel like Arman, Ganata, Cabalse and Caigas, among others, was similarly established. xxx xxx xxx As to the CAFGU auxiliaries, the habeas Court found them personally involved in the abduction. We also do, for, indeed, the evidence of their participation is overwhelming.101

complainant Sister Diana Ortiz was abducted and tortured by agents of the Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured in early November 1989. The Commission's findings of fact were mostly based on the consistent and credible statements, written and oral, made by Sister Ortiz regarding her ordeal.106 These statements were supported by her recognition of portions of the route they took when she was being driven out of the military installation where she was detained.107 She was also examined by a medical doctor whose findings showed that the 111 circular second degree burns on her back and abrasions on her cheek coincided with her account of cigarette burning and torture she suffered while in detention.108 With the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds that much of the information and evidence of the ordeal will come from the victims themselves, and the veracity of their account will depend on their credibility and candidness in their written and/or oral statements. Their statements can be corroborated by other evidence such as physical evidence left by the torture they suffered or landmarks they can identify in the places where they were detained. Where powerful military officers are implicated, the hesitation of witnesses to surface and testify against them comes as no surprise. We now come to the right of the respondents to the privilege of the writ of Amparo. There is no quarrel that the enforced disappearance of both respondents Raymond and Reynaldo Manalo has now passed as they have escaped from captivity and surfaced. But while respondents admit that they are no longer in detention and are physically free, they assert that they are not "free in every sense of the word"109 as their "movements continue to be restricted for fear that people they have named in their Judicial Affidavits and testified against (in the case of Raymond) are still at large and have not been held accountable in any way. These people are directly connected to the Armed Forces of the Philippines and are, thus, in a position to threaten respondents' rights to life, liberty and security."110 (emphasis supplied) Respondents claim that they are under threat of being once again abducted, kept captive or even killed, which constitute a direct violation of their right to security of person.111 Elaborating on the "right to security, in general," respondents point out that this right is "often associated with liberty;" it is also seen as an "expansion of rights based on the prohibition against torture and cruel and unusual punishment." Conceding that there is no right to security expressly mentioned in Article III of the 1987 Constitution, they submit that their rights "to be kept free from torture and from incommunicado detention and solitary detention places112 fall under the general coverage of the right to security of person under the writ of Amparo." They submit that the Court ought to give an expansive recognition of the right to security of person in view of the State Policy under Article II of the 1987 Constitution which enunciates that, "The State values the dignity of every human person and guarantees full respect for human rights." Finally, to justify a liberal interpretation of the right to security of person, respondents cite the teaching in Moncupa v. Enrile113 that "the right to liberty may be made more meaningful only if there is no undue restraint by the State on the exercise of that liberty"114 such as a requirement to "report under unreasonable restrictions that amounted to a deprivation of liberty"115 or being put under "monitoring and surveillance."116 In sum, respondents assert that their cause of action consists in the threat to their right to life and liberty, and a violation of their right to security. Let us put this right to security under the lens to determine if it has indeed been violated as respondents assert. The right to security or the right to security of person finds a textual hook in Article III, Section 2 of the 1987 Constitution which provides, viz: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge...

We reject the claim of petitioners that respondent Raymond Manalo's statements were not corroborated by other independent and credible pieces of evidence.102 Raymond's affidavit and testimony were corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and medical reports prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the physical injuries inflicted on respondents,103 also corroborate respondents' accounts of the torture they endured while in detention. Respondent Raymond Manalo's familiarity with the facilities in Fort Magsaysay such as the "DTU," as shown in his testimony and confirmed by Lt. Col. Jimenez to be the "Division Training Unit,"104 firms up respondents' story that they were detained for some time in said military facility.

At the core of this guarantee is the immunity of one's person, including the extensions of his/her person - houses, papers, and effects - against government intrusion. Section 2 not only limits the state's power over a person's home and possessions, but more importantly, protects the privacy and sanctity of the person himself.117 The purpose of this provision was enunciated by the Court in People v. CFI of Rizal, Branch IX, Quezon City, viz: 118

In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission on Human Rights, the Commission considered similar evidence, among others, in finding that

The purpose of the constitutional guarantee against unreasonable searches and seizures is to prevent violations of private security in person

and property and unlawful invasion of the security of the home by officers of the law acting under legislative or judicial sanction and to give remedy against such usurpation when attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to the dignity and happiness and to the peace and security of every individual, whether it be of home or of persons and correspondence. (Tañada and Carreon, Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great fundamental right against unreasonable searches and seizures must be deemed absolute as nothing is closer to a man's soul than the serenity of his privacy and the assurance of his personal security. Any interference allowable can only be for the best causes and reasons.119 (emphases supplied) While the right to life under Article III, Section 1120 guarantees essentially the right to be alive121 - upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life, viz: "The life to which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the security of his person and property. The ideal of security in life and property... pervades the whole history of man. It touches every aspect of man's existence."122 In a broad sense, the right to security of person "emanates in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual."123 A closer look at the right to security of person would yield various permutations of the exercise of this right. First, the right to security of person is "freedom from fear." In its "whereas" clauses, the Universal Declaration of Human Rights (UDHR) enunciates that "a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people." (emphasis supplied) Some scholars postulate that "freedom from fear" is not only an aspirational principle, but essentially an individual international human right.124 It is the "right to security of person" as the word "security" itself means "freedom from fear."125 Article 3 of the UDHR provides, viz: Everyone has the right to life, liberty and security of supplied)

person.126

(emphasis

In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) also provides for the right to security of person, viz: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. (emphasis supplied)

degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person.129 Physical torture, force, and violence are a severe invasion of bodily integrity. When employed to vitiate the free will such as to force the victim to admit, reveal or fabricate incriminating information, it constitutes an invasion of both bodily and psychological integrity as the dignity of the human person includes the exercise of free will. Article III, Section 12 of the 1987 Constitution more specifically proscribes bodily and psychological invasion, viz: (2) No torture, force, violence, threat or intimidation, or any other means which vitiate the free will shall be used against him (any person under investigation for the commission of an offense). Secret detention places, solitary, incommunicado or other similar forms of detention are prohibited. Parenthetically, under this provision, threat and intimidation that vitiate the free will although not involving invasion of bodily integrity - nevertheless constitute a violation of the right to security in the sense of "freedom from threat" as afore-discussed. Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under investigation for the commission of an offense. Victims of enforced disappearances who are not even under such investigation should all the more be protected from these degradations. An overture to an interpretation of the right to security of person as a right against torture was made by the European Court of Human Rights (ECHR) in the recent case of Popov v. Russia.130 In this case, the claimant, who was lawfully detained, alleged that the state authorities had physically abused him in prison, thereby violating his right to security of person. Article 5(1) of the European Convention on Human Rights provides, viz: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ..." (emphases supplied) Article 3, on the other hand, provides that "(n)o one shall be subjected to torture or to inhuman or degrading treatment or punishment." Although the application failed on the facts as the alleged ill-treatment was found baseless, the ECHR relied heavily on the concept of security in holding, viz: ...the applicant did not bring his allegations to the attention of domestic authorities at the time when they could reasonably have been expected to take measures in order to ensure his security and to investigate the circumstances in question. xxx xxx xxx ... the authorities failed to ensure his security in custody or to comply with the procedural obligation under Art.3 to conduct an effective investigation into his allegations.131 (emphasis supplied) The U.N. Committee on the Elimination of Discrimination against Women has also made a statement that the protection of the bodily integrity of women may also be related to the right to security and liberty, viz:

The Philippines is a signatory to both the UDHR and the ICCPR. In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from being baseless to well-founded as people react differently. The degree of fear can vary from one person to another with the variation of the prolificacy of their imagination, strength of character or past experience with the stimulus. Thus, in the Amparo context, it is more correct to say that the "right to security" is actually the "freedom from threat." Viewed in this light, the "threatened with violation" Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision.127 Second, the right to security of person is a guarantee of bodily and psychological integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one's body cannot be searched or invaded without a search warrant.128 Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the

...gender-based violence which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under specific human rights conventions is discrimination within the meaning of article 1 of the Convention (on the Elimination of All Forms of Discrimination Against Women). These rights and freedoms include . . . the right to liberty and security of person.132 Third, the right to security of person is a guarantee of protection of one's rights by the government. In the context of the writ of Amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State "guarantees full respect for human rights" under Article II, Section 11 of the 1987 Constitution.133 As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations,

organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case,134viz: (The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.135 This third sense of the right to security of person as a guarantee of government protection has been interpreted by the United Nations' Human Rights Committee136 in not a few cases involving Article 9137 of the ICCPR. While the right to security of person appears in conjunction with the right to liberty under Article 9, the Committee has ruled that the right to security of person can exist independently of the right to liberty. In other words, there need not necessarily be a deprivation of liberty for the right to security of person to be invoked. In Delgado Paez v. Colombia,138 a case involving death threats to a religion teacher at a secondary school in Leticia, Colombia, whose social views differed from those of the Apostolic Prefect of Leticia, the Committee held, viz: The first sentence of article 9 does not stand as a separate paragraph. Its location as a part of paragraph one could lead to the view that the right to security arises only in the context of arrest and detention. The travaux préparatoires indicate that the discussions of the first sentence did indeed focus on matters dealt with in the other provisions of article 9. The Universal Declaration of Human Rights, in article 3, refers to the right to life, the right to liberty and the right to security of the person. These elements have been dealt with in separate clauses in the Covenant. Although in the Covenant the only reference to the right of security of person is to be found in article 9, there is no evidence that it was intended to narrow the concept of the right to security only to situations of formal deprivation of liberty. At the same time, States parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because that he or she is not arrested or otherwise detained. States parties are under an obligation to take reasonable and appropriate measures to protect them. An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant.139(emphasis supplied) The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a political activist and prisoner of conscience who continued to be intimidated, harassed, and restricted in his movements following his release from detention. In a catena of cases, the ruling of the Committee was of a similar import: Bahamonde v. Equatorial Guinea,141 involving discrimination, intimidation and persecution of opponents of the ruling party in that state; Tshishimbi v. Zaire,142 involving the abduction of the complainant's husband who was a supporter of democratic reform in Zaire; Dias v. Angola,143 involving the murder of the complainant's partner and the harassment he (complainant) suffered because of his investigation of the murder; and Chongwe v. Zambia,144 involving an assassination attempt on the chairman of an opposition alliance. Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford protection of the right to liberty. 145 The ECHR interpreted the "right to security of person" under Article 5(1) of the European Convention of Human Rights in the leading case on disappearance of persons, Kurt v. Turkey.146 In this case, the claimant's son had been arrested by state authorities and had not been seen since. The family's requests for information and investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her son's right to security of person. The ECHR ruled, viz: ... any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of

disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.147 (emphasis supplied) Applying the foregoing concept of the right to security of person to the case at bar, we now determine whether there is a continuing violation of respondents' right to security. First, the violation of the right to security as freedom from threat to respondents' life, liberty and security. While respondents were detained, they were threatened that if they escaped, their families, including them, would be killed. In Raymond's narration, he was tortured and poured with gasoline after he was caught the first time he attempted to escape from Fort Magsaysay. A call from a certain "Mam," who wanted to see him before he was killed, spared him. This time, respondents have finally escaped. The condition of the threat to be killed has come to pass. It should be stressed that they are now free from captivity not because they were released by virtue of a lawful order or voluntarily freed by their abductors. It ought to be recalled that towards the end of their ordeal, sometime in June 2007 when respondents were detained in a camp in Limay, Bataan, respondents' captors even told them that they were still deciding whether they should be executed. Respondent Raymond Manalo attested in his affidavit, viz: Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.148 The possibility of respondents being executed stared them in the eye while they were in detention. With their escape, this continuing threat to their life is apparent, moreso now that they have surfaced and implicated specific officers in the military not only in their own abduction and torture, but also in those of other persons known to have disappeared such as Sherlyn Cadapan, Karen Empeño, and Manuel Merino, among others. Understandably, since their escape, respondents have been under concealment and protection by private citizens because of the threat to their life, liberty and security. The threat vitiates their free will as they are forced to limit their movements or activities.149 Precisely because respondents are being shielded from the perpetrators of their abduction, they cannot be expected to show evidence of overt acts of threat such as face-to-face intimidation or written threats to their life, liberty and security. Nonetheless, the circumstances of respondents' abduction, detention, torture and escape reasonably support a conclusion that there is an apparent threat that they will again be abducted, tortured, and this time, even executed. These constitute threats to their liberty, security, and life, actionable through a petition for a writ of Amparo. Next, the violation of the right to security as protection by the government. Apart from the failure of military elements to provide protection to respondents by themselves perpetrating the abduction, detention, and torture, they also miserably failed in conducting an effective investigation of respondents' abduction as revealed by the testimony and investigation report of petitioners' own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division. The one-day investigation conducted by Jimenez was very limited, superficial, and onesided. He merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians whom he met in the investigation for the first time. He was present at the investigation when his subordinate Lingad was taking the sworn statements, but he did not propound a single question to ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test the alibis given by the six implicated persons nor for the family or neighbors of the respondents. In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the event the writ of Amparo is issued by a competent court against any members of the AFP, which should essentially include verification of the identity of the aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and securing statements from them; determination of the cause, manner, location and time of death or disappearance; identification and apprehension of the person or persons involved in the death or disappearance; and bringing of the suspected offenders before a competent court.150 Petitioner AFP Chief of Staff also submitted his own

affidavit attesting that he received the above directive of respondent Secretary of National Defense and that acting on this directive, he immediately caused to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of the respondents, and undertook to provide results of the investigations to respondents.151 To this day, however, almost a year after the policy directive was issued by petitioner Secretary of National Defense on October 31, 2007, respondents have not been furnished the results of the investigation which they now seek through the instant petition for a writ of Amparo. Under these circumstances, there is substantial evidence to warrant the conclusion that there is a violation of respondents' right to security as a guarantee of protection by the government. In sum, we conclude that respondents' right to security as "freedom from threat" is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the ineffective investigation and protection on the part of the military. Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question. First, that petitioners furnish respondents all official and unofficial reports of the investigation undertaken in connection with their case, except those already in file with the court. Second, that petitioners confirm in writing the present places of official assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas. Third, that petitioners cause to be produced to the Court of Appeals all medical reports, records and charts, and reports of any treatment given or recommended and medicines prescribed, if any, to the Manalo brothers, to include a list of medical personnel (military and civilian) who attended to them from February 14, 2006 until August 12, 2007. With respect to the first and second reliefs, petitioners argue that the production order sought by respondents partakes of the characteristics of a search warrant. Thus, they claim that the requisites for the issuance of a search warrant must be complied with prior to the grant of the production order, namely: (1) the application must be under oath or affirmation; (2) the search warrant must particularly describe the place to be searched and the things to be seized; (3) there exists probable cause with one specific offense; and (4) the probable cause must be personally determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.152 In the case at bar, however, petitioners point out that other than the bare, self-serving and vague allegations made by respondent Raymond Manalo in his unverified declaration and affidavit, the documents respondents seek to be produced are only mentioned generally by name, with no other supporting details. They also argue that the relevancy of the documents to be produced must be apparent, but this is not true in the present case as the involvement of petitioners in the abduction has not been shown. Petitioners' arguments do not hold water. The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz: Section 1. Motion for production or inspection order. Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved

in the action and which are in his possession, custody or control... In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent judge, under authority of Rule 27, issued a subpoena duces tecum for the production and inspection of among others, the books and papers of Material Distributors (Phil.) Inc. The company questioned the issuance of the subpoena on the ground that it violated the search and seizure clause. The Court struck down the argument and held that the subpoena pertained to a civil procedure that "cannot be identified or confused with unreasonable searches prohibited by the Constitution..." Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to provide results of the investigations conducted or to be conducted by the concerned unit relative to the circumstances of the alleged disappearance of the persons in whose favor the Writ of Amparo has been sought for as soon as the same has been furnished Higher headquarters." With respect to the second and third reliefs, petitioners assert that the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, as well as the submission of a list of medical personnel, is irrelevant, improper, immaterial, and unnecessary in the resolution of the petition for a writ of Amparo. They add that it will unnecessarily compromise and jeopardize the exercise of official functions and duties of military officers and even unwittingly and unnecessarily expose them to threat of personal injury or even death. On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, whom respondents both directly implicated as perpetrators behind their abduction and detention, is relevant in ensuring the safety of respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also help ensure that these military officers can be served with notices and court processes in relation to any investigation and action for violation of the respondents' rights. The list of medical personnel is also relevant in securing information to create the medical history of respondents and make appropriate medical interventions, when applicable and necessary. In blatant violation of our hard-won guarantees to life, liberty and security, these rights are snuffed out from victims of extralegal killings and enforced disappearances. The writ of Amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls. WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the Court of Appeals dated December 26, 2007 is affirmed. SO ORDERED.

Republic of the Philippines SUPREME COURT Baguio EN BANC G.R. Nos. 184379-80 April 24, 2012 RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and ARTURO LOZADA, Petitioners, vs. PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO ERMITA, AVELINO RAZON, ANGEL ATUTUBO and SPO4 ROGER VALEROSO,* Respondents. DECISION SERENO, J.: What the Court decides today has nothing to do with the substance or merits surrounding the aborted deal of the Philippine government with the National Broadband Network and ZTE Corporation, or any allegation of petitioner Rodolfo Noel "June" Lozada, Jr., (Lozada) regarding the same. There is only one issue that we decide today – whether circumstances are adequately alleged and proven by petitioner Lozada to entitle him to the protection of the writ of amparo. Before us is a Petition for Review on Certiorari of the Decision dated 12 September 2008 of the Court of Appeals (CA), dismissing the Petition for the Issuance of a Writ of Amparo.1 Petitioner Lozada was the former President and Chief Executive Officer of the Philippine Forest Corporation (PFC), a government-owned- and -controlled corporation under the Department of Environment and Natural Resources (DENR).2 Petitioner Violeta Lozada (Violeta) is his wife, while petitioner Arturo Lozada (Arturo) is his brother. At the time the Petition for the Writ of Amparo was filed, respondent former President Gloria Macapagal Arroyo (former President Arroyo) was the incumbent President of the Philippines. Meanwhile, Eduardo Ermita (ES Ermita) was then the Executive Secretary; Avelino Razon (Razon), the Director General of the Philippine National Police (PNP); Angel Atutubo (Atutubo), the Assistant General Manager for Security and Emergency Services of the Manila International Airport Authority; and Rodolfo Valeroso (Valeroso), an agent of the Aviation Security Group (ASG) of the PNP.

Lozada asked if he could go to the comfort room, an opportunity he used to call up his brother, petitioner Arturo, and inform him of his situation.14 The men thereafter led him through the departure area of the airport and into a car waiting for them.15 They made him sit alone at the back of the vehicle, while a man, whom he later discovered to be respondent Valeroso, took the passenger seat and was always in contact with other individuals.16 Lozada observed that other cars tailed their vehicle.17 Sec. Atienza then phoned Lozada, assuring the latter that he was with people from the government, and that the former was going to confer with "ES and Ma’[a]m." Lozada surmised that these individuals referred to ES Ermita and former President Arroyo, respectively.18 Sec. Atienza also purportedly instructed Lozada to pacify his wife, petitioner Violeta, who was making public statements asking for her husband’s return.19 The vehicle traversed the South Luzon Expressway and drove towards the direction of Laguna.20 Along the way, the men asked Lozada to draft an antedated letter requesting police protection.21 Lozada requested that he be brought home to Pasig, but the men were allegedly compelled to deny his request on account of unidentified security risks.22 Eventually, however, the vehicle turned around and drove to Libis, Quezon City. The group stopped at The Outback restaurant to meet with certain individuals, who turned out to be Atty. Antonio Bautista (Atty. Bautista) and Colonel Paul Mascarinas (Col. Mascarinas) of the Police Special Protection Office (PSPO). At the restaurant, Lozada claimed that he was made to fill in the blanks of a prepared affidavit.23 After the meeting, the men informed Lozada that they were going to billet him in a hotel for a night, but he suggested that they take him to La Salle Green Hills instead. The men acquiesced.24 Upon arriving in La Salle Green Hills, Lozada was met by Violeta and his sister, Carmen Lozada (Carmen).25 He observed that the perimeter was guarded by policemen, purportedly restraining his liberty and threatening not only his security, but also that of his family and the De La Salle brothers.26 On 6 February 2008, at around 10:00 a.m., Col. Mascarinas supposedly brought Lozada to the office of Atty. Bautista to finalize and sign an affidavit.27

Antecedent Facts The instant Petition stems from the alleged corruption scandal precipitated by a transaction between the Philippine government, represented by the National Broadband Network (NBN), and ZTE Corporation (ZTE), a Chinese manufacturer of telecommunications equipment.3 Former National Economic Development Authority (NEDA) Secretary Romulo Neri (Sec. Neri) sought the services of Lozada as an unofficial consultant in the ZTE-NBN deal.4The latter avers that during the course of his engagement, he discovered several anomalies in the said transaction involving certain public officials.5 These events impelled the Senate of the Philippines Blue Ribbon Committee (Blue Ribbon Committee) to conduct an investigation thereon,6 for which it issued a subpoena directing Lozada to appear and testify on 30 January 2008.7 On that date, instead of appearing before the Blue Ribbon Committee, Lozada left the country for a purported official trip to London, as announced by then DENR Secretary Lito Atienza (Sec. Atienza).8 In the Petition, Lozada alleged that his failure to appear at the scheduled hearing was upon the instructions of then Executive Assistant Undersecretary Manuel Gaite (Usec. Gaite).9 Consequently, the Senate issued an Order dated 30 January 2008: (a) citing Lozada for contempt; (b) ordering his arrest and detention; and (c) directing the Senate Sergeant-at-Arms to implement the Order and make a return thereon.10 While overseas, Lozada asked Sec. Atienza whether the former could be allowed to go back to the Philippines.11Upon the approval of Sec. Atienza, Lozada informed his family that he was returning from Hong Kong on 5 February 2008 on board Cathay Pacific Flight No. 919, bound to arrive in Manila at 4:40 p.m. on the same day.12 In the Petition, Lozada claims that, upon disembarking from the aircraft, several men held his arms and took his bag. Although he allegedly insisted on meeting with his family, he later realized that it was wiser to just follow them, especially when he overheard from their handheld radio: "[H]wag kayong dumaan diyan sir nandyan ang mga taga senado."13

At about 1:00 p.m., Violeta filed before this Court a Petition for Habeas Corpus, docketed as G.R. No. 181342 (the Habeas Corpus case).28 Arturo likewise filed before this Court a Petition for a Writ of Amparo, docketed as G.R. No. 181356 (the Amparo case), and prayed for the issuance of (a) the writ of amparo; (b) a Temporary Protection Order (TPO); and (c) Inspection and Production Orders as regards documents related to the authority ordering custody over Lozada, as well as any other document that would show responsibility for his alleged abduction.29 At around the same time that Arturo filed the Petition for a Writ of Amparo, Col. Mascarinas drove Lozada back to La Salle Green Hills.30 Lozada was then made to sign a typewritten, antedated letter requesting police protection.31Thereafter, former Presidential Spokesperson Michael Defensor (Sec. Defensor) supposedly came and requested Lozada to refute reports that the latter was kidnapped and to deny knowledge of alleged anomalies in the NBN-ZTE deal. Sec. Defensor then purportedly gave Lozada ₱50,000 for the latter’s expenses.32 On 7 February 2008, Lozada decided to hold a press conference and contact the Senate Sergeant-at-Arms, who served the warrant of arrest on him.33 Lozada claimed that after his press conference and testimony in the Senate, he and his family were since then harassed, stalked and threatened.34 On the same day, this Court issued a Resolution (a) consolidating the Habeas Corpus case and the Amparo case; (b) requiring respondents in the Habeas Corpus case to comment on the Petition; (c) issuing a Writ of Amparo; (d) ordering respondents in the Amparo case to file their verified Return; (e) referring the consolidated Petitions to the CA; and (f) directing the CA to set the cases for hearing on 14 February 2008.35 Accordingly, the court a quo set both cases for hearing on 14 February 2008.36 On 12 February 2008, respondents filed before the CA a Manifestation and Motion, praying for the dismissal of the Habeas Corpus case.37 They asserted that Lozada was never illegally deprived of his liberty and was, at that time, no longer in their custody. They likewise averred that, beginning 8 February 2008, Lozada had already been under the supervision of the Senate and, from then on, had been testifying before it.38

In their verified Return, respondents claimed that Sec. Atienza had arranged for the provision of a security team to be assigned to Lozada, who was then fearful for his safety.39 In effect, respondents asserted that Lozada had knowledge and control of the events that took place on 5 February 2008, voluntarily entrusted himself to their company, and was never deprived of his liberty. Hence, respondents prayed for the denial of the interim reliefs and the dismissal of the Petition.40 During the initial hearing on 14 February 2008, Lozada and Violeta ratified the Petition in the Amparo case41 to comply with Section 2 of the Rule on the Writ of Amparo,42 which imposes an order to be followed by those who can sue for the writ.43 The CA also dismissed the Habeas Corpus case in open court for being moot and academic, as Lozada was physically present and was not confined or detained by any of the respondents.44 Considering that petitioners failed to question the dismissal of the Habeas Corpus case, the said dismissal had lapsed into finality, leaving only the Amparo case open for disposition. Thereafter, Lozada filed a Motion for Temporary Protection Order and Production of Documents,45 while Arturo filed a Motion for Production of Documents.46 Additionally, Arturo also filed a Motion for the Issuance of Subpoena Ad Testificandum and Presentation of Hostile Witnesses and Adverse Parties Romulo Neri, Benjamin Abalos, [Sr.], Rodolfo Valeroso, "Jaime" the Driver and Other Respondents. Respondents opposed these motions.47 The CA denied the Motion for the Issuance of Subpoena on the ground that the alleged acts and statements attributed to Sec. Neri and Benjamin Abalos (Abalos) were irrelevant to the Amparo case, and that to require them to testify would only result in a fishing expedition.48 The CA likewise denied Arturo’s subsequent Motion for Reconsideration.49

The Office of the Solicitor General (OSG) asserts that petitioners failed to adduce substantial evidence, as the allegations they propounded in support of their Petition were largely hearsay.56 The OSG also maintains that it was proper for the CA to have dropped former President Arroyo as respondent on account of her presidential immunity from suit.57 Respondent Atutubo also alleges, among others, that: (a) Lozada voluntarily asked for security and protection; (b) Lozada willingly submitted himself to the company of the police escorts; (c) Atutubo merely accompanied him to pass through the contingency route customarily provided to VIP passengers, public figures, foreign dignitaries, and the like; and (d) Atutubo only performed his job to ensure security and maintain order at the airport upon the arrival of Lozada.58 In the face of these assertions by respondents, petitioners nevertheless insist that while they have sufficiently established that Lozada was taken against his will and was put under restraint, respondents have failed to discharge their own burden to prove that they exercised extraordinary diligence as public officials.59 Petitioners also maintain that it was erroneous for the CA to have denied their motion for subpoena ad testificandum for being irrelevant, given that the relevancy of evidence must be examined after it is offered, and not before.60 Finally, petitioners contend that the presidential immunity from suit cannot be invoked in amparo actions.61 Issues In ruling on whether the CA committed reversible error in issuing its assailed Decision, three issues must be discussed:

In its Resolution dated 5 March 2008, the CA dropped former President Arroyo as a respondent on the ground that at the time the Petition in the Amparo case was filed, she was still the incumbent President enjoying immunity from suit.50 Arturo filed a Motion for Reconsideration,51 which the CA denied in its Resolution dated 25 March 2008.52

I. Whether the CA committed an error in dropping former President Arroyo as a respondent in the Amparo case. II. Whether the CA committed an error in denying petitioners’ Motion for the Issuance of a Subpoena Ad Testificandum.

On 12 September 2008, the CA rendered its Decision denying petitioners the privilege of the Writ of Amparo and dismissing the Petition.53 The CA found that petitioners were unable to prove through substantial evidence that respondents violated, or threatened with violation, the right to life, liberty and security of Lozada. Petitioners thus filed the instant Petition, praying for: (a) the reversal of the assailed CA Decision; (b) the issuance of the TPO; and (c) the accreditation of the Association of Major Religious Superiors of the Philippines and the De La Salle Brothers as the sanctuaries of Lozada and his family.54 In the alternative, petitioners pray that this Court remand the case to the CA for further hearings and reverse the latter’s Orders: (a) denying the Motion to Issue a Subpoena Ad Testificandum and (b) dropping former President Arroyo as a respondent. Petitioners raise the following issues: (1) Whether the Court a [q]uo erred in ruling to dismiss the petition for a writ of amparo and deny Petitioners’ prayer for a Temporary Protection Order, inter alia, because there is no substantial evidence to prove that the right to life, liberty or security of Jun Lozada was violated or threatened with violation. This rule is not in accord with the rule on the writ of amparo and Supreme Court jurisprudence on substantial evidence[.] (2) Whether the Ponencia erred and gravely abused its discretion by prematurely ruling that the testimony of witnesses which Petitioners sought to present and who are subject of the Motion for Issuance of Subpoena ad testificandum were irrelevant to the Petition for a Writ of Amparo in a way not in accord with the Rules of Court and Supreme Court decisions. (3) Whether the Court a quo erred in using and considering the affidavits of respondents in coming up with the questioned decision when these were not offered as evidence and were not subjected to crossexamination. This ruling is not in accord with the Rules of Court and jurisprudence. (4) Whether the Court a [q]uo erred in dropping as respondent Pres. Gloria Arroyo despite her failure to submit a verified return and personally claim presidential immunity in a way not in accord with the Rule on the Writ of Amparo.55

III. Whether petitioners should be granted the privilege of the writ of amparo. Discussion The writ of amparo is an independent and summary remedy that provides rapid judicial relief to protect the people’s right to life, liberty and security.62 Having been originally intended as a response to the alarming cases of extrajudicial killings and enforced disappearances in the country, it serves both preventive and curative roles to address the said human rights violations. It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.63 As it stands, the writ of amparo is confined only to cases of extrajudicial killings and enforced disappearances, or to threats thereof.64 Considering that this remedy is aimed at addressing these serious violations of or threats to the right to life, liberty and security, it cannot be issued on amorphous and uncertain grounds,65 or in cases where the alleged threat has ceased and is no longer imminent or continuing.66 Instead, it must be granted judiciously so as not to dilute the extraordinary and remedial character of the writ, thus: The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life, liberty, and security of persons, free from fears and threats that vitiate the quality of this life. It is an extraordinary writ conceptualized and adopted in light of and in response to the prevalence of extra-legal killings and enforced disappearances. Accordingly, the remedy ought to be resorted to and granted judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by the indiscriminate filing of amparo petitions for purposes less than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations.67 (Emphasis supplied.) Using this perspective as the working framework for evaluating the assailed CA decision and the evidence adduced by the parties, this Court denies the Petition. First issue: Presidential immunity from suit

It is settled in jurisprudence that the President enjoys immunity from suit during his or her tenure of office or actual incumbency.68 Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president even for acts committed during his or her tenure.69 In the case at bar, the events that gave rise to the present action, as well as the filing of the original Petition and the issuance of the CA Decision, occurred during the incumbency of former President Arroyo. In that respect, it was proper for the court a quo to have dropped her as a respondent on account of her presidential immunity from suit. It must be underscored, however, that since her tenure of office has already ended, former President Arroyo can no longer invoke the privilege of presidential immunity as a defense to evade judicial determination of her responsibility or accountability for the alleged violation or threatened violation of the right to life, liberty and security of Lozada. Nonetheless, examining the merits of the case still results in the denial of the Petition on the issue of former President Arroyo’s alleged responsibility or accountability. A thorough examination of the allegations postulated and the evidence adduced by petitioners reveals their failure to sufficiently establish any unlawful act or omission on her part that violated, or threatened with violation, the right to life, liberty and security of Lozada. Except for the bare claims that: (a) Sec. Atienza mentioned a certain "Ma’[a]m,"70 whom Lozada speculated to have referred to her, and (b) Sec. Defensor told Lozada that "the President was ‘hurting’ from all the media frenzy,"71 there is nothing in the records that would sufficiently establish the link of former President Arroyo to the events that transpired on 5-6 February 2010, as well as to the subsequent threats that Lozada and his family purportedly received. Second issue: Denial of the issuance of a subpoena ad testificandum This Court, in Roco v. Contreras,72 ruled that for a subpoena to issue, it must first appear that the person or documents sought to be presented are prima facie relevant to the issue subject of the controversy, to wit: A subpoena is a process directed to a person requiring him to attend and to testify at the hearing or trial of an action or at any investigation conducted under the laws of the Philippines, or for the taking of his deposition. In this jurisdiction, there are two (2) kinds of subpoena, to wit: subpoena ad testificandum and subpoena duces tecum. The first is used to compel a person to testify, while the second is used to compel the production of books, records, things or documents therein specified. As characterized in H.C. Liebenow vs. The Philippine Vegetable Oil Company: The subpoena duces tecum is, in all respects, like the ordinary subpoena ad testificandum with the exception that it concludes with an injunction that the witness shall bring with him and produce at the examination the books, documents, or things described in the subpoena. Well-settled is the rule that before a subpoena duces tecum may issue, the court must first be satisfied that the following requisites are present: (1) the books, documents or other things requested must appear prima facie relevant to the issue subject of the controversy (test of relevancy); and (2) such books must be reasonably described by the parties to be readily identified (test of definiteness).73 (Emphasis supplied.) In the present case, the CA correctly denied petitioners’ Motion for the Issuance of Subpoena Ad Testificandum on the ground that the testimonies of the witnesses sought to be presented during trial were prima facie irrelevant to the issues of the case. The court a quo aptly ruled in this manner: The alleged acts and statements attributed by the petitioner to Neri and Abalos are not relevant to the instant Amparo Petition where the issue involved is whether or not Lozada’s right to life, liberty and security was threatened or continues to be threatened with violation by the unlawful act/s of the respondents. Evidence, to be relevant, must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. Further, Neri, Abalos and a certain driver "Jaime" are not respondents in this Amparo Petition and the vague allegations averred in the Motion with respect to them do not pass the test of relevancy. To Our mind, petitioner appears to be embarking on a "fishing expedition". Petitioner should present the aggrieved party [Lozada], who has been regularly attending the hearings, to prove the

allegations in the Amparo Petition, instead of dragging the names of other people into the picture. We have repeatedly reminded the parties, in the course of the proceedings, that the instant Amparo Petition does not involve the investigation of the ZTE-[NBN] contract. Petitioner should focus on the fact in issue and not embroil this Court into said ZTE-NBN contract, which is now being investigated by the Senate Blue Ribbon Committee and the Office of the Ombudsman.74 (Emphasis supplied.) All the references of petitioners to either Sec. Neri or Abalos were solely with respect to the ZTE-NBN deal, and not to the events that transpired on 5-6 February 2008, or to the ensuing threats that petitioners purportedly received. Although the present action is rooted from the involvement of Lozada in the said government transaction, the testimonies of Sec. Neri or Abalos are nevertheless not prima facie relevant to the main issue of whether there was an unlawful act or omission on the part of respondents that violated the right to life, liberty and security of Lozada. Thus, the CA did not commit any reversible error in denying the Motion for the Issuance of Subpoena Ad Testificandum. Third issue: Grant of the privilege of the writ of amparo A. Alleged violation of or threat to the right to life, liberty and security of Lozada Sections 17 and 18 of the Rule on the Writ of Amparo requires the parties to establish their claims by substantial evidence,75 or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.76The use of this evidentiary threshold reveals the clear intent of the framers of the Rule on the Writ of Amparo to have the equivalent of an administrative proceeding, albeit judicially conducted, in addressing amparo situations.77 In cases where the violation of the right to life, liberty or security has already ceased, it is necessary for the petitioner in an amparo action to prove the existence of a continuing threat.78 Thus, this Court held in its Resolution in Razon v. Tagitis:79 Manalo is different from Tagitis in terms of their factual settings, as enforced disappearance was no longer a problem in that case. The enforced disappearance of the brothers Raymond and Reynaldo Manalo effectively ended when they escaped from captivity and surfaced, while Tagitis is still nowhere to be found and remains missing more than two years after his reported disappearance. An Amparo situation subsisted in Manalo, however, because of the continuing threat to the brothers’ right to security; the brothers claimed that since the persons responsible for their enforced disappearance were still at large and had not been held accountable, the former were still under the threat of being once again abducted, kept captive or even killed, which threat constituted a direct violation of their right to security of person.80 (Emphasis supplied.) In the present case, the totality of the evidence adduced by petitioners failed to meet the threshold of substantial evidence. Sifting through all the evidence and allegations presented, the crux of the case boils down to assessing the veracity and credibility of the parties’ diverging claims as to what actually transpired on 5-6 February 2008. In this regard, this Court is in agreement with the factual findings of the CA to the extent that Lozada was not illegally deprived of his liberty from the point when he disembarked from the aircraft up to the time he was led to the departure area of the airport,81 as he voluntarily submitted himself to the custody of respondents: [Lozada] was one of the first few passengers to get off the plane because he was instructed by Secretary Atienza, th[r]ough a phone call on the night of 04 February 2008, while he was still in Hong Kong, to proceed directly to the Bureau of Immigration so that few people would notice him and he could be facilitated in going out of the airport without any hassle from the people of the Senate Sergeant-at-Arms. Again, [Lozada] stated that he wanted to get away from the Senate people. [Lozada] even went to the men’s room of the airport, after he was allegedly "grabbed", where he made a call to his brother Arturo, using his Globe phone, and he was not prevented from making said call, and was simply advised by the person who met him at the tube to (sic) "sir, bilisan mo na". When they proceeded out of the tube and while walking, [Lozada] heard from the radio track down, "wag kayo dyan, sir, nandyan yong mga taga Senado", so they took a detour and went up to the departure area, did not go out of the normal arrival area, and proceeded towards the elevator near the Duty Free Shop and then down towards the tarmac. Since [Lozada] was avoiding the people from the Office of the Senate Sergeant-at-Arms, said detour appears to explain why they did not get out at the arrival area, where [Lozada] could have passed through immigration so that his passport could be properly stamped.

This Court does not find any evidence on record that [Lozada] struggled or made an outcry for help when he was allegedly "grabbed" or "abducted" at the airport. [Lozada] even testified that nobody held him, and they were not hostile to him nor shouted at him. With noon day clarity, this Court finds that the reason why [Lozada] was fetched at the airport was to help him avoid the Senate contingent, who would arrest and detain him at the Office of the Senate Sergeant-at-Arms, until such time that he would appear and give his testimony, pursuant to the Order of the Senate on the NBN-ZTE Project. [Lozada] clearly knew this because at that time, it was still his decision not to testify before the Senate. He agreed with that plan.82 (Emphases supplied.) The foregoing statements show that Lozada personally sought the help of Sec. Atienza to avoid the Senate personnel, and thus knew that the men who met him at the airport were there to aid him in such objective. Surely, the actions of Lozada evinced knowledge and voluntariness, uncharacteristic of someone who claims to have been forcibly abducted. However, these men’s subsequent acts of directing Lozada to board the vehicle and driving him around, without disclosing the exact purpose thereof, appear to be beyond what he had consented to and requested from Sec. Atienza. These men neither informed him of where he was being transported nor provided him complete liberty to contact his family members to assure them of his safety. These acts demonstrated that he lacked absolute control over the situation, as well as an effective capacity to challenge their instructions.

of these cases against him. In any event, said purported cases are to be determined based on their own merits and are clearly beyond the realm of the instant amparo petition filed against the respondents.83 (Emphasis supplied.) Finally, petitioners insist that while they were able to sufficiently establish their case by the required evidentiary standard, respondents failed to discharge their burden to prove their defenses by substantial evidence and to show that respondents exercised extraordinary diligence as required by the Rule on the Writ of Amparo.84 This Court has squarely passed upon this contention in Yano v. Sanchez,85 to wit: The failure to establish that the public official observed extraordinary diligence in the performance of duty does not result in the automatic grant of the privilege of the amparo writ. It does not relieve the petitioner from establishing his or her claim by substantial evidence. Thus, in amparo actions, petitioners must establish their claims by substantial evidence, and they cannot merely rely on the supposed failure of respondents to prove either their defenses or their exercise of extraordinary diligence. In this case, the totality of the evidence presented by petitioners fails to meet the requisite evidentiary threshold, and the privilege of the writ of amparo has already been rendered moot and academic by the cessation of the restraint to Lozada’s liberty. B. Propriety of the privilege of the writ of amparo and its interim reliefs

Nevertheless, it must be emphasized that if Lozada had in fact been illegally restrained, so much so that his right to liberty and security had been violated, the acts that manifested this restraint had already ceased and has consequently rendered the grant of the privilege of the writ of amparo moot. Whether or not Lozada was deprived of his liberty from the point when he was led inside the vehicle waiting for him at the airport up to the time he was taken to La Salle Green Hills, petitioners’ assertions that Lozada and his family continue to suffer various threats from respondents remain unproven. The CA correctly found as follows: The supposed announcement of General Razon over the radio that [Lozada] was in the custody of the PNP can neither be construed as a threat to [Lozada’s] life, liberty and security. Certainly, no person in his right mind would make that kind of media announcement if his intent was indeed to threaten somebody’s life, liberty and security. xxx

xxx

xxx

He claims that he is threatened by the alleged presence of armed men riding in motorcycle passing outside the De La Salle premises where he and his family are staying and by alleged threats of armed men around him at places where he went to. Again, these alleged threats were not proven by any evidence at all, as having originated from any of the respondents. [Lozada] also considers the installation of the surveillance camera at the De La Salle and at St. Scholastica as indirect threat to his right to life, liberty and security. He claims that these are spy cameras. However, save for [Lozada’s] self-serving claim, he simply failed to prove that they were installed or ordered installed by the respondents for the purpose of threatening his right to life, liberty and security. [Lozada] further maintains that there is an alleged trend, i.e., wherever he goes, there is a bomb threat. There were bomb threats in the places where he went to like in [the Polytechnic University of the Philippines], Dagupan, Cebu and Bohol. However, [Lozada] himself testified that he did not try to ascertain where the bomb threats emanated. Plainly, there is no evidence on record that the bomb threats were made by the respondents or done upon their instigation. Moreover, [Lozada] views the pronouncement of the Secretary of Justice that he was put on the watch list of the Bureau of Immigration as a threat to his life, liberty and security. This alleged threat is again unsupported by evidence, as in fact, [Lozada] testified that he did not ascertain from the Bureau of Immigration whether his name was actually in the official watch list of the Bureau. At any rate, the Secretary of Justice is not one of the respondents in the amparo petition, and there is no showing in the record that it was the respondents who ordered the same for the purpose of threatening him. [Lozada] harps on the filing of alleged frivolous cases against him and his family as threat to his life, liberty and security. xxx However, [Lozada] himself testified that he does not know whether the respondents or any of the respondents ordered the filing

As previously discussed, there is no basis to grant Lozada the privilege of the writ of amparo, considering that the illegal restraint alleged in this case had already ceased and there is no imminent or continuing restriction on his liberty. In Castillo v. Cruz,86 this Court held as follows: Although respondents’ release from confinement does not necessarily hinder supplication for the writ of amparo, absent any evidence or even an allegation in the petition that there is undue and continuing restraint on their liberty, and/or that there exists threat or intimidation that destroys the efficacy of their right to be secure in their persons, the issuance of the writ cannot be justified. (Emphasis supplied.)1âwphi1 Further, it appears that Lozada had already filed before the Department of Justice (DOJ) a Complaint charging respondents with kidnapping and attempted murder, docketed as I.S. No. 2008-467.87 In this regard, this Court’s ruling in Rubrico v. Arroyo88 is worth considering: First, a criminal complaint for kidnapping and, alternatively, for arbitrary detention rooted in the same acts and incidents leading to the filing of the subject amparo petition has been instituted with the OMB, docketed as OMB-P-C-O7-0602-E. The usual initial steps to determine the existence of a prima facie case against the five (5) impleaded individuals suspected to be actually involved in the detention of Lourdes have been set in motion. It must be pointed out, though, that the filing of the OMB complaint came before the effectivity of the Amparo Rule on October 24, 2007. Second, Sec. 22 of the Amparo Rule proscribes the filing of an amparo petition should a criminal action have, in the meanwhile, been commenced. The succeeding Sec. 23, on the other hand, provides that when the criminal suit is filed subsequent to a petition for amparo, the petition shall be consolidated with the criminal action where the Amparo Rule shall nonetheless govern the disposition of the relief under the Rule. Under the terms of said Sec. 22, the present petition ought to have been dismissed at the outset. But as things stand, the outright dismissal of the petition by force of that section is no longer technically feasible in light of the interplay of the following factual mix: (1) the Court has, pursuant to Sec. 6 of the Rule, already issued ex parte the writ of amparo; (2) the CA, after a summary hearing, has dismissed the petition, but not on the basis of Sec. 22; and (3) the complaint in OMB-P-C-O7-0602-E named as respondents only those believed to be the actual abductors of Lourdes, while the instant petition impleaded, in addition, those tasked to investigate the kidnapping and detention incidents and their superiors at the top. Yet, the acts and/or omissions subject of the criminal complaint and the amparo petition are so linked as to call for the consolidation of both proceedings to obviate the mischief inherent in a multiplicity-of-suits situation. Given the above perspective and to fully apply the beneficial nature of the writ of amparo as an inexpensive and effective tool to protect certain rights violated or threatened to be violated, the Court hereby adjusts to a degree the literal application of Secs. 22 and 23 of the Amparo Rule to fittingly address the situation obtaining under the premises. Towards this end, two things are at once indicated: (1) the consolidation

of the probe and fact-finding aspects of the instant petition with the investigation of the criminal complaint before the OMB; and (2) the incorporation in the same criminal complaint of the allegations in this petition bearing on the threats to the right to security. Withal, the OMB should be furnished copies of the investigation reports to aid that body in its own investigation and eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB shall be given easy access to all pertinent documents and evidence, if any, adduced before the CA. Necessarily, Lourdes, as complainant in OMBP-C-O7-0602-E, should be allowed, if so minded, to amend her basic criminal complaint if the consolidation of cases is to be fully effective. (Emphasis supplied.) Thus, if the Complaint filed before the DOJ had already progressed into a criminal case, then the latter action can more adequately dispose of the allegations made by petitioners. After all, one of the ultimate objectives of the writ of amparo as a curative remedy is to facilitate the subsequent punishment of perpetrators.89 On the other hand, if there is no actual criminal case lodged before the courts, then the denial of the Petition is without prejudice to the filing of the appropriate administrative, civil or criminal case, if applicable, against those individuals whom Lozada deems to have unduly restrained his liberty. Finally, with respect to the interim reliefs sought by petitioners, this Court, in Yano v. Sanchez,90 declined to grant the prayer for the issuance of a TPO, as well as Inspection and Production Orders, upon a finding that the implicated public officials were not accountable for the disappearance subject of that case. Analogously, it would be incongruous to grant herein petitioners’ prayer for a TPO and Inspection and Production Orders and at the same time rule that there no longer exists any imminent or continuing threat to Lozada’s right to life, liberty and security. Thus, there is no basis on which a prayer for the issuance of these interim reliefs can be anchored. WHEREFORE, the instant petition is DENIED for being moot and academic. The Court of Appeals’ denial of the privilege of the writ of amparo is hereby AFFIRMED. SO ORDERED. MARIA Associate Justice

LOURDES

P.

A.

SERENO

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 184467 June 19, 2012 EDGARDO NAVIA,1 RUBEN DIO,2 and ANDREW BUISING, Petitioners, vs. VIRGINIA PARDICO, for and in behalf and in representation of BENHUR V. PARDICO Respondent.

brief discussion though, Navia allowed Ben to leave. Ben also affixed his signature on the logbook to affirm the statements entered by the guards that he was released unharmed and without any injury.14 Upon Navia’s instructions, Dio and Buising went back to the house of Lolita to make her sign the logbook as witness that they indeed released Ben from their custody. Lolita asked Buising to read aloud that entry in the logbook where she was being asked to sign, to which Buising obliged. Not contented, Lolita put on her reading glasses and read the entry in the logbook herself before affixing her signature therein. After which, the guards left.

DECISION DEL CASTILLO, J.: For the protective writ of amparo to issue in enforced disappearance cases, allegation and proof that the persons subject thereof are missing are not enough. It must also be shown by the required quantum of proof that their disappearance was carried out by, "or with the authorization, support or acquiescence of, [the government] or a political organization, followed by a refusal to acknowledge [the same or] give information on the fate or whereabouts of [said missing] persons."3 This petition for review on certiorari4 filed in relation to Section 19 of A.M. No. 07-912-SC5 challenges the July 24, 2008 Decision6 of the Regional Trial Court (RTC), Branch 20, Malolos City which granted the Petition for Writ of Amparo7 filed by herein respondent against the petitioners. Factual Antecedents On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies Corporation8 (Asian Land) arrived at the house of Lolita M. Lapore (Lolita) located at 7A Lot 9, Block 54, Grand Royale Subdivision, Barangay Lugam, Malolos City. The arrival of the vehicle awakened Lolita’s son, Enrique Lapore (Bong), and Benhur Pardico (Ben), who were then both staying in her house. When Lolita went out to investigate, she saw two uniformed guards disembarking from the vehicle. One of them immediately asked Lolita where they could find her son Bong. Before Lolita could answer, the guard saw Bong and told him that he and Ben should go with them to the security office of Asian Land because a complaint was lodged against them for theft of electric wires and lamps in the subdivision.9 Shortly thereafter, Bong, Lolita and Ben were in the office of the security department of Asian Land also located in Grand Royale Subdivision.10 The supervisor of the security guards, petitioner Edgardo Navia (Navia), also arrived thereat. As to what transpired next, the parties’ respective versions diverge. Version of the Petitioners Petitioners alleged that they invited Bong and Ben to their office because they received a report from a certain Mrs. Emphasis, a resident of Grand Royale Subdivision, that she saw Bong and Ben removing a lamp from a post in said subdivision.11 The reported unauthorized taking of the lamp was relayed thru radio to petitioners Ruben Dio (Dio) and Andrew Buising (Buising), who both work as security guards at the Asian Land security department. Following their department’s standard operating procedure, Dio and Buising entered the report in their logbook and proceeded to the house of Mrs. Emphasis. It was there where Dio and Buising were able to confirm who the suspects were. They thus repaired to the house of Lolita where Bong and Ben were staying to invite the two suspects to their office. Bong and Ben voluntarily went with them. At the security office, Dio and Buising interviewed Bong and Ben. The suspects admitted that they took the lamp but clarified that they were only transferring it to a post nearer to the house of Lolita.12 Soon, Navia arrived and Buising informed him that the complainant was not keen in participating in the investigation. Since there was no complainant, Navia ordered the release of Bong and Ben. Bong then signed a statement to the effect that the guards released him without inflicting any harm or injury to him.13 His mother Lolita also signed the logbook below an entry which states that she will never again harbor or entertain Ben in her house. Thereafter, Lolita and Bong left the security office. Ben was left behind as Navia was still talking to him about those who might be involved in the reported loss of electric wires and lamps within the subdivision. After a

Subsequently, petitioners received an invitation15 from the Malolos City Police Station requesting them to appear thereat on April 17, 2008 relative to the complaint of Virginia Pardico (Virginia) about her missing husband Ben. In compliance with the invitation, all three petitioners appeared at the Malolos City Police Station. However, since Virginia was not present despite having received the same invitation, the meeting was reset to April 22, 2008.16 On April 22, 2008, Virginia attended the investigation. Petitioners informed her that they released Ben and that they have no information as to his present whereabouts.17 They assured Virginia though that they will cooperate and help in the investigation of her missing husband.18 Version of the Respondent According to respondent, Bong and Ben were not merely invited. They were unlawfully arrested, shoved into the Asian Land vehicle and brought to the security office for investigation. Upon seeing Ben at the security office, Navia lividly grumbled "Ikaw na naman?"19 and slapped him while he was still seated. Ben begged for mercy, but his pleas were met with a flurry of punches coming from Navia hitting him on different parts of his body.20 Navia then took hold of his gun, looked at Bong, and said, "Wala kang nakita at wala kang narinig, papatayin ko na si Ben."21 Bong admitted that he and Ben attempted to take the lamp. He explained that the area where their house is located is very dark and his father had long been asking the administrator of Grand Royale Subdivision to install a lamp to illumine their area. But since nothing happened, he took it upon himself to take a lamp from one of the posts in the subdivision and transfer it to a post near their house. However, the lamp Bong got was no longer working. Thus, he reinstalled it on the post from which he took it and no longer pursued his plan. 22 Later on, Lolita was instructed to sign an entry in the guard’s logbook where she undertook not to allow Ben to stay in her house anymore.23 Thereafter, Navia again asked Lolita to sign the logbook. Upon Lolita’s inquiry as to why she had to sign again, Navia explained that they needed proof that they released her son Bong unharmed but that Ben had to stay as the latter’s case will be forwarded to the barangay. Since she has poor eyesight, Lolita obligingly signed the logbook without reading it and then left with Bong.24 At that juncture, Ben grabbed Bong and pleaded not to be left alone. However, since they were afraid of Navia, Lolita and Bong left the security office at once leaving Ben behind.25 Moments after Lolita and Bong reached their house, Buising arrived and asked Lolita to sign the logbook again. Lolita asked Buising why she had to sign again when she already twice signed the logbook at the headquarters. Buising assured her that what she was about to sign only pertains to Bong’s release. Since it was dark and she has poor eyesight, Lolita took Buising’s word and signed the logbook without, again, reading what was written in it. 26 The following morning, Virginia went to the Asian Land security office to visit her husband Ben, but only to be told that petitioners had already released him together with Bong the night before. She then looked for Ben, asked around, and went to the barangay. Since she could not still find her husband, Virginia reported the matter to the police. In the course of the investigation on Ben’s disappearance, it dawned upon Lolita that petitioners took advantage of her poor eyesight and naivete. They made her sign the logbook as a witness that they already released Ben when in truth and in fact she never witnessed his actual release. The last time she saw Ben was when she left him in petitioners’ custody at the security office.27

Exasperated with the mysterious disappearance of her husband, Virginia filed a Petition for Writ of Amparo28 before the RTC of Malolos City. Finding the petition sufficient in form and substance, the amparo court issued an Order29dated June 26, 2008 directing, among others, the issuance of a writ of amparo and the production of the body of Ben before it on June 30, 2008. Thus:

(b) To hereby direct the NBI to extend to the family of [Benhur] Pardico and the witnesses who testified in this case protection as it may deem necessary to secure their safety and security; and (c) To hereby direct the Office of the Provincial Prosecutor of Bulacan to investigate the circumstances concerning the legality of the arrest of [Benhur] Pardico by the [petitioners] in this case, utilizing in the process, as part of said investigation, the pertinent documents and admissions forming part of the record of this case, and take whatever course/s of action as may be warranted.

WHEREFORE, conformably with Section 6 of the Supreme Court Resolution [in] A.M. No. 07-[9]-12-SC, also known as "The Rule On The Writ Of Amparo", let a writ of amparo be issued, as follows: (1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising of the Asian Land Security Agency to produce before the Court the body of aggrieved party Benhur Pardico, on Monday, June 30, 2008, at 10:30 a.m.; (2) ORDERING the holding of a summary hearing of the petition on the aforementioned date and time, and DIRECTING the [petitioners] to personally appear thereat; (3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising to file, within a non-extendible period of seventy-two (72) hours from service of the writ, a verified written return with supporting affidavits which shall, among other things, contain the following:

Furnish immediately copies of this decision to the NBI, through the Office of Director Nestor Mantaring, and to the Provincial Prosecutor of Bulacan. SO ORDERED.36 Petitioners filed a Motion for Reconsideration37 which was denied by the trial court in an Order38 dated August 29, 2008. Hence, this petition raising the following issues for our consideration: 4.1. WHETHER X X X THE HONORABLE TRIAL COURT GRAVELY ERRED IN RULING THAT RESPONDENT IS ENTITLED TO THE PRIVILEGE OF THE WRIT OF AMPARO.

a) The lawful defenses to show that the [petitioners] did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission;

4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT PETITIONERS HAVE COMMITTED OR ARE COMMITTING ACTS IN VIOLATION OF HER HUSBAND’S RIGHT TO LIFE, LIBERTY, OR SECURITY.

b) The steps or actions taken by the [petitioners] to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; and

4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY ESTABLISHED THE FACT OF THE DISAPPEARANCE OF BENHUR PARDICO.

c) All relevant information in the possession of the [petitioners] pertaining to the threat, act or omission against the aggrieved party. (4) GRANTING, motu proprio, a Temporary Protection Order prohibiting the [petitioners], or any persons acting for and in their behalf, under pain of contempt, from threatening, harassing or inflicting any harm to [respondent], his immediate family and any [member] of his household.

4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT THE ALLEGED DISAPPEARANCE OF BENHUR PARDICO WAS AT THE INSTANCE OF HEREIN PETITIONERS.39 Petitioners’ Arguments

A summary hearing was thereafter conducted. Petitioners presented the testimony of Buising, while Virginia submitted the sworn statements34 of Lolita and Enrique which the two affirmed on the witness stand.

Petitioners essentially assail the sufficiency of the amparo petition. They contend that the writ of amparo is available only in cases where the factual and legal bases of the violation or threatened violation of the aggrieved party’s right to life, liberty and security are clear. Petitioners assert that in the case at bench, Virginia miserably failed to establish all these. First, the petition is wanting on its face as it failed to state with some degree of specificity the alleged unlawful act or omission of the petitioners constituting a violation of or a threat to Ben’s right to life, liberty and security. And second, it cannot be deduced from the evidence Virginia adduced that Ben is missing; or that petitioners had a hand in his alleged disappearance. On the other hand, the entries in the logbook which bear the signatures of Ben and Lolita are eloquent proof that petitioners released Ben on March 31, 2008 at around 10:30 p.m. Petitioners thus posit that the trial court erred in issuing the writ and in holding them responsible for Ben’s disappearance.

Ruling of the Regional Trial Court

Our Ruling

On July 24, 2008, the trial court issued the challenged Decision35 granting the petition. It disposed as follows:

Virginia’s Petition for Writ of Amparo is fatally defective and must perforce be dismissed, but not for the reasons adverted to by the petitioners.

WHEREFORE, the Court hereby grants the privilege of the writ of amparo, and deems it proper and appropriate, as follows:

A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to arrest the rampant extralegal killings and enforced disappearances in the country. Its purpose is to provide an expeditious and effective relief "to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity." 40

The Branch Sheriff is directed to immediately serve personally on the [petitioners], at their address indicated in the petition, copies of the writ as well as this order, together with copies of the petition and its annexes.30 A Writ of Amparo31 was accordingly issued and served on the petitioners on June 27, 2008.32 On June 30, 2008, petitioners filed their Compliance33 praying for the denial of the petition for lack of merit.

(a) To hereby direct the National Bureau of Investigation (NBI) to immediately conduct a deep and thorough investigation of the [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising in connection with the circumstances surrounding the disappearance of [Benhur] Pardico, utilizing in the process, as part of the investigation, the documents forming part of the records of this case;

Here, Ben’s right to life, liberty and security is firmly settled as the parties do not dispute his identity as the same person summoned and questioned at petitioners’ security office on the night of March 31, 2008. Such uncontroverted fact ipso facto established Ben’s inherent and constitutionally enshrined right to life, liberty and security. Article 641 of the International Covenant on Civil and Political Rights42 recognizes every human being’s inherent right to life, while Article 943 thereof

ordains that everyone has the right to liberty and security. The right to life must be protected by law while the right to liberty and security cannot be impaired except on grounds provided by and in accordance with law. This overarching command against deprivation of life, liberty and security without due process of law is also embodied in our fundamental law.44 The pivotal question now that confronts us is whether Ben’s disappearance as alleged in Virginia’s petition and proved during the summary proceedings conducted before the court a quo, falls within the ambit of A.M. No. 07-9-12-SC and relevant laws. It does not. Section 1 of A.M. No. 07-9-12-SC provides: SECTION 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Emphasis ours.) While Section 1 provides A.M. No. 07-9-12-SC’s coverage, said Rules does not, however, define extralegal killings and enforced disappearances. This omission was intentional as the Committee on Revision of the Rules of Court which drafted A.M. No. 07-9-12-SC chose to allow it to evolve through time and jurisprudence and through substantive laws as may be promulgated by Congress.45 Then, the budding jurisprudence on amparo blossomed in Razon, Jr. v. Tagitis46 when this Court defined enforced disappearances. The Court in that case applied the generally accepted principles of international law and adopted the International Convention for the Protection of All Persons from Enforced Disappearance’s definition of enforced disappearances, as "the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law."47 Not long thereafter, another significant development affecting A.M. No. 07-9-12-SC came about after Congress enacted Republic Act (RA) No. 985148 on December 11, 2009. Section 3(g) thereof defines enforced or involuntary disappearances as follows: (g) "Enforced or involuntary disappearance of persons" means the arrest, detention, or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing from the protection of the law for a prolonged period of time. Then came Rubrico v. Macapagal-Arroyo49 where Justice Arturo D. Brion wrote in his Separate Opinion that with the enactment of RA No. 9851, "the Rule on the Writ of Amparo is now a procedural law anchored, not only on the constitutional rights to the rights to life, liberty and security, but on a concrete statutory definition as well of what an ‘enforced or involuntary disappearance’ is."50 Therefore, A.M. No. 07-9-12-SC’s reference to enforced disappearances should be construed to mean the enforced or involuntary disappearance of persons contemplated in Section 3(g) of RA No. 9851. Meaning, in probing enforced disappearance cases, courts should read A.M. No. 07-912-SC in relation to RA No. 9851.

(d) that the intention for such refusal is to remove subject person from the protection of the law for a prolonged period of time. As thus dissected, it is now clear that for the protective writ of amparo to issue, allegation and proof that the persons subject thereof are missing are not enough. It must also be shown and proved by substantial evidence that the disappearance was carried out by, or with the authorization, support or acquiescence of, the State or a political organization, followed by a refusal to acknowledge the same or give information on the fate or whereabouts of said missing persons, with the intention of removing them from the protection of the law for a prolonged period of time. Simply put, the petitioner in an amparo case has the burden of proving by substantial evidence the indispensable element of government participation. In the present case, we do not doubt Bong’s testimony that Navia had a menacing attitude towards Ben and that he slapped and inflicted fistic blows upon him. Given the circumstances and the pugnacious character of Navia at that time, his threatening statement, "Wala kang nakita at wala kang narinig, papatayin ko na si Ben," cannot be taken lightly. It unambiguously showed his predisposition at that time. In addition, there is nothing on record which would support petitioners’ assertion that they released Ben on the night of March 31, 2008 unscathed from their wrath. Lolita sufficiently explained how she was prodded into affixing her signatures in the logbook without reading the entries therein. And so far, the information petitioners volunteered are sketchy at best, like the alleged complaint of Mrs. Emphasis who was never identified or presented in court and whose complaint was never reduced in writing.1âwphi1 But lest it be overlooked, in an amparo petition, proof of disappearance alone is not enough. It is likewise essential to establish that such disappearance was carried out with the direct or indirect authorization, support or acquiescence of the government. This indispensable element of State participation is not present in this case. The petition does not contain any allegation of State complicity, and none of the evidence presented tend to show that the government or any of its agents orchestrated Ben’s disappearance. In fact, none of its agents, officials, or employees were impleaded or implicated in Virginia’s amparo petition whether as responsible or accountable persons.51 Thus, in the absence of an allegation or proof that the government or its agents had a hand in Ben’s disappearance or that they failed to exercise extraordinary diligence in investigating his case, the Court will definitely not hold the government or its agents either as responsible or accountable persons. We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may lie against a private individual or entity. But even if the person sought to be held accountable or responsible in an amparo petition is a private individual or entity, still, government involvement in the disappearance remains an indispensable element. Here, petitioners are mere security guards at Grand Royale Subdivision in Brgy. Lugam, Malolos City and their principal, the Asian Land, is a private entity. They do not work for the government and nothing has been presented that would link or connect them to some covert police, military or governmental operation. As discussed above, to fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851, the disappearance must be attended by some governmental involvement. This hallmark of State participation differentiates an enforced disappearance case from an ordinary case of a missing person. WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court, Branch 20, Malolos City, is REVERSED and SET ASIDE. The Petition for Writ of Amparo filed by Virginia Pardico is hereby DISMISSED. SO ORDERED.

From the statutory definition of enforced disappearance, thus, we can derive the following elements that constitute it: (a) that there be an arrest, detention, abduction or any form of deprivation of liberty; (b) that it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization; (c) that it be followed by the State or political organization’s refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparo petition; and,

MARIANO Associate Justice

C.

DEL

CASTILLO

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 193652 August 5, 2014 Infant JULIAN YUSA Y CARAM, represented by his mother, MA. CHRISTINA YUSAY CARAM, Petitioner, vs. Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B. CABRERA, and CELIA C. YANGCO,Respondents. DECISION

longer in the position to stop the adoption process. Assistant Secretary Cabrera further stated that should Christina wish to reacquire her parental authority over Baby Julian or halt the adoption process, she may bring the matter to the regular courts as the reglementary period for her to regain her parental rights had already lapsed under Section 7 of Republic Act (R.A.) No. 9523.16 On July 27, 2010, Christina filed a petition17 for the issuance of a writ of amparo before the RTC of Quezon City seeking to obtain custody of Baby Julian from Atty. Segui, Atty. Escutin, Assistant Secretary Cabrera and Acting Secretary Celia C. Yangco, all of the DSWD. In her petition, Christina accused respondents of "blackmailing" her into surrendering custody of her childto the DSWD utilizing what she claims to be an invalid certificate of availability for adoption which respondents allegedly used as basis to misrepresent that all legal requisites for adoption of the minor child had been complied with.

VILLARAMA, JR., J.: Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, and Section 191 of the Rule on the Writ of Amparo2 seeking to set aside the August 17, 20103 and September 6, 20104Orders of the Regional Trial Court (RTC), Branch 106 of Quezon City, in Sp. Proc. Case No. Q-10-67604. The RTC had dismissed petitioner’s petition for the issuance ofa writ of amparo which petitioner filed in order for her to regain parental authority and custody of Julian Yusay Caram (Baby Julian), her biological child, from the respondent officers of the Department of Social Welfare and Development (DSWD). The factual antecedents as gleaned from the records follow: Petitioner Ma. Christina Yusay Caram(Christina) had an amorous relationship with Marcelino Gicano Constantino III (Marcelino) and eventually became pregnant with the latter’s child without the benefit of marriage. After getting pregnant, Christina mislead Marcelino into believing that she had an abortion when in fact she proceeded to complete the term of her pregnancy. During this time, she intended to have the child adopted through Sun and Moon Home for Children (Sun and Moon) in Parañaque City to avoid placing her family ina potentially embarrassing situation for having a second illegitimate son.5 On July 26, 2009, Christina gavebirth to Baby Julian at Amang Rodriguez Memorial MedicalCenter, Marikina City.6Sun and Moon shouldered all the hospital and medical expenses. On August 13, 2009, Christina voluntarily surrendered Baby Julian by way of a Deed of Voluntary Commitment7 to the DSWD. died8

On November 26, 2009, Marcelino suffered a heart attack and without knowing about the birth of his son. Thereafter, during the wake, Christina disclosed to Marcelino’s family that she and the deceased had a son that she gave up for adoption due to financial distress and initial embarrassment. Marcelino’s family was taken aback by the revelation and sympathized with Christina. After the emotional revelation, they vowed to help her recover and raise the baby.9 On November 27, 2009, the DSWD, through Secretary Esperanza I. Cabral issued a certificate10declaring Baby Julian as "Legally Available for Adoption." A local matching conference was held on January 27, 2010 and on February 5, 2010, Baby Julian was "matched" with the spouses Vergel and Filomina Medina (Medina Spouses) of the Kaisahang Bahay Foundation. Supervised trial custody then commenced.11

Christina argued that by making these misrepresentations, the respondents had acted beyond the scope of their legal authority thereby causing the enforced disappearance of the said child and depriving her of her custodial rights and parental authority over him. On the basis of the said petition,the RTC, Branch 106 of Quezon City, through its Presiding Judge, the Honorable Angelene Mary W. Quimpo-Sale, issued a Writ of Amparo18 on July 28, 2010 commanding the four respondents to produce the body of Baby Julian at a hearing scheduled on August 4, 2010. Respondents were alsorequired to file their verified written return to the writ pursuant to Section 919 of the Amparo Rule, within five working days from the service of the writ. The respondents complied with the writ and filed their Return20 on August 2, 2010 praying that the petition be denied for being the improper remedy to avail of in a case relating toa biological parent’s custodial rights over her child. On August 4, 2010, respondents appeared before the RTC but respondents did not bring the child, stating that threats of kidnapping were made on the child and his caregivers. To give respondents another chance, the RTC reset the hearing to August 5, 2010. At the August 5, 2010 hearing, the Office of the Solicitor General (OSG) entered its appearance as representative of the State and prayed that its lawyers be given time to file their memorandum or position paper in this case. In turn, the RTC acknowledged the appearance of the OSG and allowed its representatives to actively participate in the arguments raised during the said hearing. Relative to the matter of the parties submitting additional pleadings, Judge Sale narrowed the issues to be discussed by providing for the following guidelines, thus: To abbreviate the proceedings, in view of all the manifestations and countermanifestations made by the counsels, the court enjoined the parties to file their respective position papers on the following issues: 1. Whether or not this court has jurisdiction over the instant case;

On May 5, 2010, Christina who had changed her mind about the adoption, wrote a letter to the DSWDasking for the suspension of Baby Julian’s adoption proceedings. She alsosaid she wanted her family back together.12 On May 28, 2010, the DSWD, through respondent Atty. Marijoy D. Segui, sent a Memorandum13 to DSWD Assistant Secretary Vilma B. Cabrera informing her that the certificate declaring Baby Julian legally available for adoption had attained finality on November 13, 2009, or three months after Christina signed the Deed of Voluntary Commitment which terminated her parental authority and effectively made Baby Julian a ward of the State. The said Memorandum was noted by respondent Atty. Sally D. Escutin, Director IV of the Legal Service, DSWD. On July 12, 2010, Noel Gicano Constantino, Marcelino’s brother, sent a letter to Atty. Escutin informing her that a DNA testing was scheduled on July 16, 2010 at the DNA Analysis Laboratory at the University of the Philippines.14 On July 16, 2010, Assistant Secretary Cabrera sent a letter15 to Noel Constantino stating that it would not allow Baby Julian to undergo DNA testing. Assistant Secretary Cabrera informed Noel Constantino that the procedures followed relative to the certification on the availability of the child for adoption and the child’s subsequent placement to prospective adoptive parents were proper, and that the DSWD was no

2. Whether or not this petition isthe proper remedy based on the facts of the case and prayer in the petition; and 3. Whether or not the prayer in the petition should be granted and custody of the child be given to his biological mother. The parties were given five (5) days from today to file their respective position papers based on these three main issues. They may include other related issues they deem essential for the resolution of this case. Set this case for further hearing, if necessary, on August 18, 2010 at 9:00 a.m.21 In the same order, Judge Sale alsoacknowledged that the child subject of the case was brought before the court and the petitioner was allowed to see him and take photographs of him. On August 17, 2010, the RTC dismissed the petition for issuance of a writ of amparo without prejudice to the filing of the appropriate action in court. The RTC held that Christina availed of the wrong remedy to regain custody of her child Baby Julian.22 The RTC further stated that Christina should have filed a civil case for custody of her child

as laid down in the Family Code and the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. If there is extreme urgency to secure custody of a minor who has been illegallydetained by another, a petition for the issuance of a writ of habeas corpus may be availed of, either as a principal or ancillary remedy, pursuant to the Rule on Custody of Minors and Writ of Habeas Corpus inRelation to Custody of Minors.23

enforced disappearances, or to threats thereof. As to what constitutes "enforced disappearance," the Court in Navia v. Pardico33 enumerated the elementsconstituting "enforced disappearances" as the term is statutorily defined in Section 3(g) of R.A. No. 985134 to wit: (a) that there be an arrest, detention, abduction or any form of deprivation of liberty;

On August 20, 2010, Christina filed a motion for reconsideration24 arguing that since the RTC assumed jurisdiction of the petition for the issuance of a writ of amparo, the latter is duty-bound to dispose the case on the merits.25 The RTC, however, deniedChristina’s motion for reconsideration on September 6, 2010 maintaining that the latter availed of the wrong remedy and that the Supreme Court intended the writ of amparo to address the problem of extrajudicial killings and enforced disappearances.26 On September 28, 2010, Christina directly elevated the case before this Court, via a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, in relation to Section 19 of the Rule on the Writ of Amparo. In her petition, Christina prayed that the Court (1) set aside the August 17, 2010 and September 6, 2010 Orders of the RTC, (2) declare R.A. No. 9523 unconstitutional for being contrary to A.M. No. 02-6-02-SC,27 which was promulgated by the Supreme Court, and for violating the doctrine of separation of powers, (3) declare the "enforced separation" between her and Baby Julian as violative of her rights to life, liberty and security, and (4) grant her the privilege of availing the benefits of a writ of amparo so she could be reunited with her son.28 The only relevant issue presented before the Court worthy of attention is whether a petition for a writ of amparo is the proper recourse for obtaining parental authority and custody of a minor child. This Court will not belabor to discuss Christina’s argumentsrelating to the supposedunconstitutionality or R.A. No. 9523 as Congress has the plenary power to repeal, alter and modify existing laws 29 and A.M. No. 02-602-SC functions only as a means to enforce the provisions of all adoption and adoption-related statutes before the courts. Now, in her petition, Christina argues that the life, liberty and security of Baby Julian is being violated or threatened by the respondent DSWD officers’ enforcement of an illegal Deed of Voluntary Commitment between her and Sun and Moon. She claims thatshe had been "blackmailed" through the said Deed by the DSWD officers and Sun and Moon’s representatives into surrendering her child thereby causing the "forced separation" of the said infant from his mother. Furthermore, she also reiterates that the respondent DSWD officers acted beyond the scope of their authority when they deprived her of Baby Julian’s custody.30 The Court rejects petitioner’s contentions and denies the petition. Section 1 of the Rule on the Writ of Amparo provides as follows: SECTION 1. Petition. – The petition for a writ of amparois a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful actor omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. In the landmark case of Secretary of National Defense, et al. v. Manalo, et al., 31 this Court held: [T]he AmparoRule was intended to address the intractable problem of "extralegal killings" and "enforced disappearances," its coverage, in its present form, is confined to these two instances or to threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e., without legal safeguards or judicial proceedings." On the other hand, "enforced disappearances" are "attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groupsor private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. This pronouncement on the coverage of the writ was further cemented in the latter case of Lozada, Jr. v. Macapagal-Arroyo32 where this Court explicitly declared that as it stands, the writ of amparo is confined only to cases of extrajudicial killings and

(b) that it be carried out by, or with the authorization, support or acquiescence of, the State ora political organization; (c) that it be followed by the State or political organization’s refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparopetition; and, (d) that the intention for such refusal isto remove subject person from the protection of the law for a prolonged period of time.1âwphi1 In this case, Christina alleged that the respondent DSWD officers caused her "enforced separation" from Baby Julian and that their action amounted to an "enforced disappearance" within the context of the Amparo rule. Contrary to her position, however, the respondent DSWD officers never concealed Baby Julian's whereabouts. In fact, Christina obtained a copy of the DSWD's May 28, 2010 Memorandum35 explicitly stating that Baby Julian was in the custody of the Medina Spouses when she filed her petition before the RTC. Besides, she even admitted in her petition for review on certiorari that the respondent DSWD officers presented Baby Julian before the RTC during the hearing held in the afternoon of August 5, 2010.36 There is therefore, no "enforced disappearance" as used in the context of the Amparo rule as the third and fourth elements are missing. Christina's directly accusing the respondents of forcibly separating her from her child and placing the latter up for adoption, supposedly without complying with the necessary legal requisites to qualify the child for adoption, clearly indicates that she is not searching for a lost child but asserting her parental authority over the child and contesting custody over him.37 Since it is extant from the pleadings filed that what is involved is the issue of child custody and the exercise of parental rights over a child, who, for all intents and purposes, has been legally considered a ward of the State, the Amparo rule cannot be properly applied. To reiterate, the privilege of the writ of amparo is a remedy available to victims of extra-judicial killings and enforced disappearances or threats of a similar nature, regardless of whether the perpetrator of the unlawful act or omission is a public official or employee or a private individual. It is envisioned basically to protect and guarantee the right to life, liberty and security of persons, free from fears and threats that vitiate the quality of life. WHEREFORE, the petition is DENIED. The August 17, 2010 and September 6, 2010 Orders of the Regional Trial Court, Branch 106, Quezon City in Sp. Proc. Case No. Q-1067604 are AFFIRMED without prejudice to petitioner's right to avail of proper legal remedies afforded to her by law and related rules. No costs. SO ORDERED. MARTIN Associate Justice

S.

VILLARAMA,

JR.

SPECIAL SECOND DIVISION G.R. Nos. 146368-69 October 18, 2004 MADELEINE MENDOZA-ONG, petitioner, vs. HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. RESOLUTION QUISUMBING, J.: In this Motion for Reconsideration,1 petitioner Madeleine Mendoza-Ong seeks a reversal of this Court’s October 23, 2003, Resolution dismissing her petition for certiorari and upholding the Sandiganbayan’s denial of her motion to quash. She contends that the Court erred in: I …holding that the information filed against [her] in Criminal Case No. 23848 has alleged the essential ingredients of the offense charged [and in] II

That the informations were filed only on August 1, 1997, also did not violate petitioner’s constitutional rights. The delay was not without valid reasons. The Special Prosecutor in charge of preparing the informations felt a genuine need to specify in the informations (1) the value of the five drums of fuel petitioner received as gift in violation of the anti-graft law and (2) the amount of the subsistence allowance of heavy-equipment operators that the municipality of Laoang, Northern Samar, paid for when petitioner used heavy equipment rented by the municipality to develop her private property. The recommendation to specify these two amounts then had to undergo levels of review and was approved by Ombudsman Desierto only on January 29, 1996. Unfortunately, the needed information was not in the records, so the Deputy Special Prosecutor sought it from the Office of the Deputy Ombudsman for the Visayas. As that office also did not possess the needed information, it issued an Order on June 10, 1996, directing petitioner to supply the needed information. When petitioner received a copy of the Order, however, she sought additional time to comply with the Order. She waited for two months before filing on August 23, 1996, a verified statement supplying none of the information required of her. She claimed that the five drums of fuel were merely donated to her and that she did not know their value. She also alleged that it was she and her husband, and not the government, who spent for the subsistence allowance of the heavy-equipment operator in the development of her private property. She did not object to the delay in the termination of the proceedings against her, nor did she seek at that time to expedite its resolution.

…failing to resolve the fundamental issue of whether the excessive or inordinate delay in the conduct of the preliminary investigation and filing of the informations after three (3) years had deprived [her] of her Constitutional and statutory right to due process and speedy determinations and disposition of the cases against her warranting dismissal thereof.2

Petitioner’s refusal to supply the information prompted the handling investigator at the Office of the Deputy Ombudsman for the Visayas to recommend on August 28, 1996, that the price of the five drums of fuel be estimated instead. Notably, the Office of the Special Prosecutor could have filed the informations then, but petitioner had filed with the said office a motion for reassessment of evidence on June 25, 1996, and a supplemental motion on August 20, 1996. These motions, which incidentally also failed to raise the issue of delay, effectively suspended the filing of the informations.

Concerning the first ground abovecited, the Court notes that the motion contains merely a reiteration or rehash of arguments already submitted to the Court and found to be without merit. Petitioner fails to raise any new and substantial arguments, and no cogent reason exists to warrant a reconsideration of the Court’s Resolution. It would be a useless ritual for the Court to reiterate itself.3

Subsequently, the case had to be reassigned to another Special Prosecutor because the original handling prosecutor was appointed Resident Ombudsman for the Bureau of Internal Revenue. Petitioner’s motion for reassessment was resolved only on June 27, 1997. The resolution again went up for further review.

As to the second ground, we find it raises arguments that have already been passed upon. Reconsideration on that ground may also be denied summarily. Nevertheless, we shall take time to explain why her motion must be set aside for lack of merit, if only to clear any lingering doubt on the matter. Petitioner laments that although the complaint was filed with the Office of the Deputy Ombudsman for the Visayas as early as December 13, 1994, the informations were filed with the Sandiganbayan only on August 1, 1997, and the amended informations, on October 27, 1998. According to her, the delay of nearly three years to finish the preliminary investigation violated her constitutional rights to due process and speedy disposition of cases. The established facts of this case, however, show no such violation. The right to speedy disposition of cases, like the right to speedy trial, is violated only when the proceedings are attended by vexatious, capricious and oppressive delays.4 In the determination of whether said right has been violated, particular regard must be taken of the facts and circumstances peculiar to each case.5 The conduct of both the prosecution and the defendant, the length of the delay, the reasons for such delay, the assertion or failure to assert such right by the accused, and the prejudice caused by the delay are the factors to consider and balance.6 A mere mathematical reckoning of time involved would not be sufficient.7 In this case, the Graft Investigation Officer released his resolution finding probable cause against petitioner on August 16, 1995, less than six months from the time petitioner and her co-accused submitted their counter-affidavits. On October 30, 1995, only two and a half months later, Ombudsman Aniano Desierto had reviewed the case and had approved the resolution. Contrary to petitioner’s contention, the lapse of only ten months from the filing of the complaint on December 13, 1994, to the approval of the resolution on October 30, 1995, is by no means oppressive. "Speedy disposition of cases" is consistent with reasonable delays. 8 The Court takes judicial notice of the fact that the nature of the Office of the Ombudsman encourages individuals who clamor for efficient government service to lodge freely their complaints against alleged wrongdoing of government personnel.9 A steady stream of cases reaching the Ombudsman inevitably results.10 Naturally, disposition of those cases would take some time. Moreover, petitioner herself had contributed to the alleged delay when she asked for extension of time to file her counter-affidavit.

Considering the number of times that the case had to be reviewed, the levels of review that the case had to undergo, and petitioner’s own motions for additional time, the period that lapsed -- roughly two years and five months (from the time petitioner and her co-accused submitted their counter-affidavits on March 29, 1995, to the time the informations were filed on August 1, 1997) to terminate the proceedings against petitioner -- could not be considered vexatious, capricious, and oppressive delay. They were necessitated by exigency of the actions taken on the case. The period to terminate the proceedings, in our view, had not violated petitioner’s constitutionally guaranteed rights to due process and to a speedy disposition of cases.11 Neither could the delay be said to have been prejudicial to her considering that she herself is guilty of delay.12 The Court has held that if the long delay in the termination of the preliminary investigation was not solely the prosecution’s fault, but was also due to incidents attributable to the accused and his counsel, the right of the accused to speedy disposition of cases is not violated.13 Petitioner cannot now seek the protection of the law to benefit from what she now considers the adverse effects of her own conduct in this case. Petitioner’s reliance on the doctrines in Tatad v. Sandiganbayan,14 Duterte v. Sandiganbayan,15 and Angchangco, Jr. v. Ombudsman16 is misplaced. In Tatad v. Sandiganbayan, the cases against petitioner remained dormant for almost three years. In ruling that the long delay violated not only Tatad’s constitutional right to due process but also his right to speedy disposition of the cases against him, the Court considered three factors. First, political motivation played a vital role in activating and propelling the prosecutorial process. Second, there was a blatant departure from established procedures prescribed by law for the conduct of a preliminary investigation. And third, the long delay in resolving the preliminary investigation could not be justified on the basis of the records.17 Worth noting, in Duterte v. Sandiganbayan, petitioners were denied the right to a preliminary investigation altogether. They were not served copies of the complaintaffidavits and were not given the chance to file counter-affidavits. The Graft Investigator merely required them to comment on a civil complaint against them and on a Special Audit Report of the Commission on Audit, both of which were not equivalent to the complaint-affidavits required by the applicable administrative rules.

In fact, the petitioners were unaware and were never informed that a preliminary investigation was being conducted against them. The recommendations in the COA Special Audit Report were already accepted even before the report came out, and the civil complaint had already long been dismissed before the Graft Investigator required petitioner’s comment on it. Additionally, in Duterte, although the petitioners had filed the manifestation in lieu of the required comment on February 18, 1992, it was only on February 22, 1996, or four years later, that they received the resolution recommending the filing of informations against them. Then, also, informations were filed against petitioners in that case even in the absence of sufficient ground to hold them liable for the crime charged. In Angchangco, Jr. v. Ombudsman, the delay lasted for six years despite the fact that Angchangco, Jr., had filed several omnibus motions for early resolution. Angchangco, Jr., even filed a motion to dismiss. Sadly, however, the Office of the Ombudsman failed to act on said motion.18 Unlike in the Tatad, Duterte, and Angchangco, Jr., cases where the delays were manifestly oppressive, the facts of this case do not evince vexatious, capricious and oppressive delay in the conduct of the preliminary investigation. There appears, therefore, no persuasive much less compelling reason to grant in this case the same radical relief granted in those three cases that petitioner cited.19 WHEREFORE, petitioner’s Motion for Reconsideration is hereby DENIED for lack of merit. SO ORDERED. Austria-Martinez, Callejo, Sr., Azcuna*, and Tinga, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 108595 May 18, 1999 ELPIDIO C. CERVANTES, petitioner, vs. THE SANDIGANBAYAN, FIRST DIVISION, THE SPECIAL PROSECUTOR, and PEDRO ALMEDRAS, respondents.

PARDO, J.: The case before the Court is a special civil action for certiorari and prohibition with preliminary injunction seeking to annul and set aside the resolution of the Sandiganbayan. First Division,1 that denied petitioner's motion to quash the information against him for violation of Section 3 (e). Republic Act 3019, and to restrain or enjoin the Sandiganbayan from proceeding with his arraignment and trial. The motion is based on the ground that the filing of the information against petitioner over six (6) years after the initial complaint with the Tanodbayan (predecessor of the Ombudsman) violated his right to speedy disposition of the case, and that the acts charged in the information do not constitute an offense.

pursuing any claim against Tapang unwarranted benefits and advantage to the damage and prejudice of Pedro Almedras. CONTRARY TO LAW.6 On May 28, 1992, petitioner filed a motion for reconsideration with the Office of the Special Prosecutor reiterating that he never met complainant Almendras on June 29, 1984, that complainant filed a case before the City Fiscal of Quezon City, claiming that his counsel together, with Tapang conspired to deprive him of his monetary award and that the case was dismissed. On October 2, 1992, petitioner filed with the Sandiganbayan, Manila, a "motion to defer arraignment due to pendency of reinvestigation or motion to quash and motion to recall warrant of arrest" on the ground that (a) petitioner filed with the office of the Special Prosecutor a motion for reinvestigation; (b) that the case against Cervantes "has prescribed" due to unreasonable delay in the resolution of the preliminary investigation, and (c) that the acts charged in the information do not constitute an offense.8 On October 2, 1992, the Ombudsman denied petitioner's motion for reconsideration,9 and simultaneously filed with the Sandiganbayan an amended information. The amendment consisted of the insertion of the total amount involved. 10

We grant the petition. The facts are as follows. On March 6, 1986, one Pedro Almendras filed with the Office of the Tanodbayan (predecessor of the Ombudsman) a sworn complaint2 against Alejandro Tapang for falsification of complaint's "salaysay" alleging that Alejandro Tapang made complainant sign a piece of paper in blank on which paper a "salaysay" was later inscribed stating that complaint had been paid his claim in the amount of P17,594.00, which was not true. In the said complaint, Pedro Almendras mentioned that he sought the help of petitioner Elpidio C. Cervantes who worked as analyst in the office of labor arbiter Teodorico L. Ruiz.3 On October 2, 1986, Alejandro Tapang submitted to the Office of the Tanodbayan a counter-affidavit stating that the letter complaint of Almendras was the subject of a labor case decided by Arbiter Teodorico L. Ruiz; that the letter "is full of lies and improbabilities "and "that it is vague."4 On October 16, 1986, petitioner Elpidio C. Cervantes filed with the office of the Tanodbayan an affidavit stating that he had nothing to do with the blank paper that Almendras signed, as admitted by the latter in a confrontation in the presence of National Labor Relations Commission (NLRC) vice chairman Diego Atienza.5 On May 18, 1992, more than six (6) years after the filing of the initiatory complaint with the Tanodbayan, Special Prosecution Officer II, Office of the Special Prosecutor Luz L. Quinones-Marcos filed with the Sandiganbayan, assigned to the First Division, an Information charging petitioner Elpidio C. Cervantes, together with Teodorico L. Ruiz and Alejandro Tapang with violation of Section 3 (e), Republic Act 3019, committed as follows: That on or about June 16, 1984, or for sometime subsequent thereto, in Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused Teodorico L. Ruiz, a public officer, being then a Labor Arbiter, National Labor Relations Commission, NCR, Department of Labor and Elpidio Cervantes, also a public officer, being then a Labor Analyst, National Labor Relations Commission, NCR, Department of Labor, in the exercise of their official and administrative functions, conspiring, confederating and conniving with private respondent Alejandro Tapang, did then and there, wilfully, unlawfully and criminally with evident bad faith and manifest partiality cause undue injury to one Pedro Almendras by then and there inducing Pedro Almendras to sign a blank paper, on which a statement was later typed and attributed as his (Almendras) statement in which statement allegedly acknowledged that the whole amount awarded to him by the NLRC in a decision in NCR Case No. 10-731-81 had been paid by Alejandro Tapang and therefore, he is no longer

By minute resolution dated December 24, 1992, the Sandiganbayan denied petitioner's motion, ruling that there was no "unwarranted postponement nor any denial by the Tanodbayan or of the Ombudsman of any step taken by the accused to accelerate the disposition on the matter." 11 Hence, this petition. On February 22, 1993, the Court required respondents to comment on the petition (not to file a motion to dismiss) within ten (10) days from notice, and issued a temporary restraining order enjoining respondent Sandiganbayan from continuing with the arraignment and trial or from further proceeding with Criminal Case No. 17673. On December 14, 1993, respondents filed their comment. On November 22, 1994, respondents filed a rejoinder. We resolved to give due course to the petition and decide the case. The issues raised are (a) whether the acts charged in the information filed against petitioner for violation of Section 3 (e), R. A. 3019 do not constitute a offense; and (b) whether the Sandiganbayan acted with grave abuse of discretion in denying his motion to quash for violation of the right to speedy disposition of the case. We shall first resolve the second issue. We find petitioner's contention meritorious. He was deprived of his right to a speedy disposition of the case, a right guaranteed by the Constitution. 12 It took the Special Prosecutor (succeeding the Tanodbayan) six (6) years from the filing of the initiatory complaint before he decided to file an information for the offense with the Sandiganbayan. The letter complaint was filed with the Tanodbayan on March 6, 1986. The affidavit of the petitioner was filed therein on October 16, 1986. The Special Prosecutor resolved the case on May 18, 1992. In their comment to the petition at bar, 13 the Sandiganbayan and the Special Prosecutor try to justify the inordinate delay in the resolution of the complaint by stating that "no political motivation appears to have tainted the prosecution of the case" in apparent reference to the case of Tatad vs. Sandiganbayan, (footnote: 159 SCRA 70, 81-82.) where the Court ruled that the "long delay (three years") in the termination of the preliminary investigation by the Tanodbayan" was violate of the Constitutional right of "speedy disposition" of cases because "political motivations played a vital role in activating and propelling the prosecutorial process in this case. The Special Prosecutor also cited Alvizo vs. Sandiganbayan (footnote 220 SCRA 55, 64) alleging that, as in Alvizo, the petitioner herein was "insensitive to the implications and contingencies thereof by not taking any step whatsoever to accelerate the disposition of the matter." We cannot accept the Special Prosecutor's ratiocination. It is the duty of the prosecutor to speedily resolve the complaint, as mandated by the Constitution, regardless of whether the petitioner did not object to the delay or that the delay was with his acquiescence provided that it was not due to causes directly attributable to him.

Consequently, we rule that the Sandiganbayan gravely abused its discretion in not quashing the information for violation of petitioner's Constitutional right to the speedy disposition of the case in the level of the Special Prosecutor, Office of the Ombudsman. 13 We deem it unnecessary to resolve the first in view of the foregoing ruling. WHEREFORE, the Court hereby GRANTS the petition and ANNULS the minute resolution of the Sandiganbayan, dated December 24, 1992, in Criminal Case No. 17673. The Court directs the Sandiganbayan to dismiss the case, with costs de oficio. The temporary restraining order heretofore issued is made permanent. No costs in this instances.1âwphi1.nêt SO ORDERED. Davide, Jr., C.J., Melo, Kapunan and Ynares-Santiago, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 85215 July 7, 1989 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial Region, Baguio City, and FELIPE RAMOS, respondents. Nelson Lidua for private respondent. NARVASA, J.: What has given rise to the controversy at bar is the equation by the respondent Judge of the right of an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III of the Constitution, with the right of any person "under investigation for the commission of an offense . . . to remain silent and to counsel, and to be informed of such right," granted by the same provision. The relevant facts are not disputed. Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at its Baguio City station. It having allegedly come to light that he was involved in irregularities in the sales of plane tickets, 1 the PAL management notified him of an investigation to be conducted into the matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine Airlines Employees' Association (PALEA) to which Ramos pertained.2 On the day before the investigation, February 8,1986, Ramos gave to his superiors a handwritten notes 3 reading as follows:

demands, ... failed and refused to make good his obligation, to the damage and prejudice of the offended party .. . On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and supervision of the Fiscal. At the close of the people's case, the private prosecutors made a written offer of evidence dated June 21, 1988,6which included "the (above mentioned) statement of accused Felipe J. Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his "handwritten admission x x given on February 8, 1986," also above referred to, which had been marked as Exhibit K. The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence."7 Particularly as regards the peoples' Exhibit A, the objection was that "said document, which appears to be a confession, was taken without the accused being represented by a lawyer." Exhibit K was objected to "for the same reasons interposed under Exhibits 'A' and 'J.' By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the testimony of the witnesses who testified in connection therewith and for whatever they are worth," except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office, in an investigation conducted by the Branch Manager x x since it does not appear that the accused was reminded of this constitutional rights to remain silent and to have counsel, and that when he waived the same and gave his statement, it was with the assistance actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made by accused Felipe J. Ramos, given on February 8, 1986 x x for the same reason stated in the exclusion of Exhibit 'A' since it does not appear that the accused was assisted by counsel when he made said admission."

2-8-86 TO WHOM IT MAY CONCERN: THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P 76,000 (APPROX.) SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86. At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City, Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that although he had planned on paying back the money, he had been prevented from doing so, "perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise x x to pay on staggered basis, (and) the amount would be known in the next investigation;" that he desired the next investigation to be at the same place, "Baguio CTO," and that he should be represented therein by "Shop stewardees ITR Nieves Blanco;" and that he was willing to sign his statement (as he in fact afterwards did). 4 How the investigation turned out is not dealt with the parties at all; but it would seem that no compromise agreement was reached much less consummated. About two (2) months later, an information was filed against Felipe Ramos charging him with the crime of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January 29, 1987. In that place and during that time, according to the indictment, 5 he (Ramos) — .. with unfaithfulness and/or abuse of confidence, did then and there willfully ... defraud the Philippine Airlines, Inc., Baguio Branch, ... in the following manner, to wit: said accused ... having been entrusted with and received in trust fare tickets of passengers for one-way trip and round-trip in the total amount of P76,700.65, with the express obligation to remit all the proceeds of the sale, account for it and/or to return those unsold, ... once in possession thereof and instead of complying with his obligation, with intent to defraud, did then and there ... misappropriate, misapply and convert the value of the tickets in the sum of P76,700.65 and in spite of repeated

The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated September 14, 1988. 10 In justification of said Order, respondent Judge invoked this Court's rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA 467, People. v. Sison, 142 SCRA 219, and People v. Decierdo, 149 SCRA 496, among others, to the effect that "in custodial investigations the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel," and the explicit precept in the present Constitution that the rights in custodial investigation "cannot be waived except in writing and in the presence of counsel." He pointed out that the investigation of Felipe Ramos at the PAL Baguio Station was one "for the offense of allegedly misappropriating the proceeds of the tickets issued to him' and therefore clearly fell "within the coverage of the constitutional provisions;" and the fact that Ramos was not detained at the time, or the investigation was administrative in character could not operate to except the case "from the ambit of the constitutional provision cited." These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the issuance of any order, decision or judgment in the aforesaid case or on any matter in relation to the same case, now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the Solicitor General to comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor General has made common cause with the petitioner and prays "that the petition be given due course and thereafter judgment be rendered setting aside respondent Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever impropriety might have attended the institution of the instant action in the name of the People of the Philippines by lawyers de parte of the offended party in the criminal action in question. The Court deems that there has been full ventilation of the issue — of whether or not it was grave abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now proceed to resolve it.

At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which respondent Judge has given a construction that is disputed by the People. The section reads as follows: SEC. 20. No person shall be compelled to be a witness against himself Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence.

Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of rights. These rights apply to persons "under investigation for the commission of an offense," i.e., "suspects" under investigation by police authorities; and this is what makes these rights different from that embodied in the first sentence, that against self-incrimination which, as aforestated, indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative. This provision granting explicit rights to persons under investigation for an offense was not in the 1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v. Arizona, 19 a decision described as an "earthquake in the world of law enforcement." 20

It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section, namely:

Section 20 states that whenever any person is "under investigation for the commission of an offense"--

1) the right against self-incrimination — i.e., the right of a person not to be compelled to be a witness against himself — set out in the first sentence, which is a verbatim reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the American Constitution, 12 and

1) he shall have the right to remain silent and to counsel, and to be informed of such right, 21

2) the rights of a person in custodial interrogation, i.e., the rights of every suspect "under investigation for the commission of an offense." Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness of these rights. It has placed the rights in separate sections. The right against self- incrimination, "No person shall be compelled to be a witness against himself," is now embodied in Section 17, Article III of the 1987 Constitution. The lights of a person in custodial interrogation, which have been made more explicit, are now contained in Section 12 of the same Article III.13 Right Against Self-Incrimination The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. 14 The right is NOT to "be compelled to be a witness against himself" The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness, whether he be a party or not, the right to refue to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty. That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge, or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness of his right against self-incrimination. It is a right that a witness knows or should know, in accordance with the well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness can be expected to know in advance the character or effect of a question to be put to the latter. 17 The right against self-incrimination is not self- executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. 18 Rights in Custodial Interrogation

2) nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him; 22 and 3) any confession obtained in violation of x x (these rights shall be inadmissible in evidence. 23 In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect. 24 He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him. The objective is to prohibit "incommunicado interrogation of individuals in a policedominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." 25 The rights above specified, to repeat, exist only in "custodial interrogations," or "incustody interrogation of accused persons." 26 And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 27 The situation contemplated has also been more precisely described by this Court." 28 .. . After a person is arrested and his custodial investigation begins a confrontation arises which at best may be tanned unequal. The detainee is brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this imbalance. Not every statement made to the police by a person involved in some crime is within the scope of the constitutional protection. If not made "under custodial interrogation," or "under investigation for the commission of an offense," the statement is not protected. Thus, in one case, 29 where a person went to a police precinct and before

any sort of investigation could be initiated, declared that he was giving himself up for the killing of an old woman because she was threatening to kill him by barang, or witchcraft, this Court ruled that such a statement was admissible, compliance with the constitutional procedure on custodial interrogation not being exigible under the circumstances. Rights of Defendant in Criminal Case As Regards Giving of Testimony It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-incrimination and (2) those during custodial interrogation apply to persons under preliminary investigation or already charged in court for a crime.

In fine, a person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in the matter of his testifying or producing evidence, to wit: 1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and 2) AFTER THE CASE IS FILED IN COURT — 37

It seems quite evident that a defendant on trial or under preliminary investigation is not under custodial interrogation. His interrogation by the police, if any there had been would already have been ended at the time of the filing of the criminal case in court (or the public prosecutors' office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation" laid down by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution, for the obvious reason that he is no longer under "custodial interrogation." But unquestionably, the accused in court (or undergoing preliminary investigation before the public prosecutor), in common with all other persons, possesses the right against self- incrimination set out in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to answer a specific incriminatory question at the time that it is put to him. 30 Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others1) to be exempt from being a witness against himself, 31 and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 32 The right of the defendant in a criminal case "to be exempt from being a witness against himself' signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. 33 In other words — unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him-the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. 34And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." 35 If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does testify, then he "may be cross- examined as any other witness." He may be cross-examined as to any matters stated in his direct examination, or connected therewith . 36 He may not on cross-examination refuse to answer any question on the ground that the answer that he will give, or the evidence he will produce, would have a tendency to incriminate him for the crime with which he is charged. It must however be made clear that if the defendant in a criminal action be asked a question which might incriminate him, not for the crime with which he is charged, but for some other crime, distinct from that of which he is accused, he may decline to answer that specific question, on the strength of the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer any question on the ground that he might be implicated in that crime of murder; but he may decline to answer any particular question which might implicate him for a different and distinct offense, say, estafa.

a) to refuse to be a witness; b) not to have any prejudice whatsoever result to him by such refusal; c) to testify in his own behalf, subject to cross-examination by the prosecution; d) WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some crime other than that for which he is then prosecuted. It should by now be abundantly apparent that respondent Judge has misapprehended the nature and import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has taken them as applying to the same juridical situation, equating one with the other. In so doing, he has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to be cogent and logical. The thesis was however so far divorced from the actual and correct state of the constitutional and legal principles involved as to make application of said thesis to the case before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and set aside. It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8,1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the so-called "Miranda rights" had not been accorded to Ramos. His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the right of any person against self-incrimination when the investigation is conducted by the complaining parties, complaining companies, or complaining employers because being interested parties, unlike the police agencies who have no propriety or pecuniary interest to protect, they may in their over-eagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give statements under an atmosphere of moral coercion, undue ascendancy and undue influence." It suffices to draw attention to the specific and peremptory requirement of the law that disciplinary sanctions may not be imposed on any employee by his employer until and unless the employee has been accorded due process, by which is meant that the latter must be informed of the offenses ascribed to him and afforded adequate time and opportunity to explain his side. The requirement entails the making of statements, oral or written, by the employee under such administrative

investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues and friends. The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.) which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the employee's statements, whether called "position paper," "answer," etc., are submitted by him precisely so that they may be admitted and duly considered by the investigating officer or committee, in negation or mitigation of his liability. Of course the possibility cannot be discounted that in certain instances the judge's expressed apprehensions may be realized, that violence or intimidation, undue pressure or influence be brought to bear on an employee under investigation — or for that matter, on a person being interrogated by another whom he has supposedly offended. In such an event, any admission or confession wrung from the person under interrogation would be inadmissible in evidence, on proof of the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but simply on the general, incontestable proposition that involuntary or coerced statements may not in justice be received against the makers thereof, and really should not be accorded any evidentiary value at all. WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988, and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The temporary restraining order of October 26, 1988 having become functus officio, is now declared of no further force and effect. Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-29169 August 19, 1968 ROGER CHAVEZ, petitioner, vs. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA, respondents. Estanislao E. Fernandez and Fausto Arce for petitioner. Office of the Solicitor General for respondents.

presented as witness for the prosecution. I want to say in passing that it is only at this very moment that I come to know about this strategy of the prosecution. COURT (To the Fiscal): You are not withdrawing the information against the accused Roger Chavez by making [him a] state witness?. FISCAL GRECIA:

SANCHEZ, J.:

I am not making him as state witness, I am only presenting him as an ordinary witness.

The thrust of petitioner's case presented in his original and supplementary petitions invoking jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted in his conviction1 he was denied his constitutional right not to be compelled to testify against himself. There is his prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the Court of Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to forward his appeal to this Court for the reason that he was raising purely questions of law. The indictment in the court below — the third amended information — upon which the judgment of conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with Plate No. H16648 Pasay City '62 together with its accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias"Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe.2

As a matter of right, because it will incriminate my client, I object. COURT: The Court will give counsel for Roger Chavez fifteen minutes within which to confer and explain to his client about the giving of his testimony. xxx

xxx

xxx

COURT: [after the recess] Are the parties ready? . FISCAL:

Upon arraignment, all the accused, except the three Does who have not been identified nor apprehended, pleaded not guilty.1äwphï1.ñët

ATTY. CARBON:

The trial opened with the following dialogue, which for the great bearing it has on this case, is here reproduced:.

Honor.

ATTY. CARBON:

Averred in the aforesaid information was that on or about the 14th day of November, 1962, in Quezon City, the accused conspired, with intent of gain, abuse of confidence and without the consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-described.

On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First Instance of Rizal in Quezon City.

Your

We are ready to call on our first witness, Roger Chavez.

As per understanding, the proceeding was suspended in order to enable me to confer with my client. I conferred with my client and he assured me that he will not testify for the prosecution this morning after I have explained to him the consequences of what will transpire.

COURT:

COURT:

The parties may proceed.

What he will testify to does not necessarily incriminate him, counsel.

FISCAL GRECIA:

And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused.

Our first witness is Roger Chavez [one of the accused]. ATTY. CARBON [Counsel for petitioner Chavez]: I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of the Fiscal in presenting him as his witness. I object.

If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him. Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him.

COURT: On what ground, counsel? .

But surely, counsel could not object to have the accused called on the witnessstand.

ATTY. CARBON:

ATTY. CARBON:

On the ground that I have to confer with my client. It is really surprising that at this stage, without my being notified by the Fiscal, my client is being

I submit.

xxx

xxx

xxx

ATTY. IBASCO:

ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .

I submit.

MAY IT PLEASE THE COURT:

COURT: The Fiscal may proceed.3

This incident of the accused Roger Chavez being called to testify for the prosecution is something so sudden that has come to the knowledge of this counsel. This representation has been apprised of the witnesses embraced in the information. For which reason I pray this court that I be given at least some days to meet whatever testimony this witness will bring about. I therefore move for postponement of today's hearing. COURT: The court will give counsel time within which to prepare his crossexamination of this witness. ATTY. CRUZ: I labored under the impression that the witnesses for the prosecution in this criminal case are those only listed in the information. I did not know until this morning that one of the accused will testify as witness for the prosecution. COURT: That's the reason why the court will go along with counsels for the accused and will give them time within which to prepare for their crossexamination of this witness.

And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal Grecia". Came the judgment of February 1, 1965. The version of the prosecution as found by the court below may be briefly narrated as follows: A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was in the market for such a car, Chavez asked Lee whether his car was for sale. Lee answered affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a barbershop informed him about the Thunderbird. But Sumilang said that he had changed his mind about buying a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez, they went to see Luis Asistio, who he knew was lending money on car mortgages and who, on one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car. Asistio however told the two that he had a better idea on how to raise the money. His plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star, introduce him as a buyer to someone who was selling a car and, after the deed of sale is signed, by trickery to run away with the car. Asistio would then register it, sell it to a third person for a profit. Chavez known to be a car agent was included in the plan. He furnished the name of Johnson Lee who was selling his Thunderbird. 1äwphï1.ñët In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment. Sometime in the afternoon. Chavez and Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was introduced as the interested buyer. Sumilang's driver inspected the car, took the wheel for a while. After Sumilang and Lee agreed on the purchase price (P21.000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they went to see a lawyer notary public in Quezon City, known to Chavez for the drafting of the deed of sale. After the deed of sale was drawn up, it was signed by Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the witnesses thereto.

The court will not defer the taking of the direct examination of the witness. Call the witness to the witness stand. EVIDENCE FOR THE PROSECUTION ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the Manila Police Department headquarters, after being duly sworn according to law, declared as follows: ATTY. IBASCO [Counsel for defendant Luis Asistio]: WITH THE LEAVE OF THE COURT: This witness, Roger Chavez is one of the accused in this case No. Q-5311. The information alleges conspiracy. Under Rule 123, Section 12, it states: 'The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.' COURT: That is premature, counsel. Neither the court nor counsels for the accused know what the prosecution eventsto establish by calling this witness to the witness stand.

As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the Thunderbird car to that place. The deed of sale and other papers remained in the pockets of Johnson Lee. At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to the restaurant. At the same time he requested Lee to exhibit the deed of sale of the car to the note bearer.4 Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose for pictures with some fans and come back, again left never to return. So did Chavez, who disappeared after he left on the pretext of buying cigarettes. The two Chinese could not locate Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found that it was gone. They then immediately reported its loss to the police. Much later, the NBI recovered the already repainted car and impounded it. Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan. There, Asistio handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's share in the transaction. On the 14th of November, the registration of the car was transferred in the name of Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan. From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be condensed as follows: In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter informed him that there was a Thunderbird from Clark Field for sale for a price between P20,000.00 and P22,000.00. Chavez said that it could be held for him with a down payment of P10,000.00.

To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check was exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on condition that it should not be cashed immediately as there were not enough funds therefor. Baltazar and Cailles agreed to give the money the nextday as long as the check would be left with them and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez picked up the money the next day. Four or five days afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar. About the end of October or at the beginning of November, Chavez asked Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that they accommodate him once more. He also sent a check, again without funds. Baltazar gave the money after verifying the authenticity of the note. On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, intending to pay out the balance upon the car's delivery. It was then that Chavez told Sumilang that the car was already bought by a Chinese who would be the vendor. The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus P500.00 agents commission at the expense of the buyer. Sumilang told Lee that he already paid part of the price to Chavez. At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There, Sumilang, also saw a friend, "Ging" Pascual. In the course of their conversation at the bar, Sumilang mentioned the proposed transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and advised that Sumilang should have a receipt for his money. A certain Bimbo, a friend of Pascual, offered to make out a receipt for Chavez to sign. After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the receipt as witnesses. And they did. This receipt was offered as an exhibit by the prosecution and by Sumilang. When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove away in the car with his driver at the wheel. Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside. Asistio offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and his friends' reputation for always getting what they wanted, Sumilang consented to the sale. Asistio tendered a down payment of P1,000.00; the balance he promised to pay the next day after negotiating with some financing company. Before said balance could be paid, the car was impounded. The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles' corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio whom the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of conspiracy was discounted. As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was not identified by Johnson Lee in court. As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt beyond reasonable doubt."5 The trial court branded him "a selfconfessed culprit".6 The court further continued: It is not improbable that true to the saying that misery loves company Roger Chavez tried to drag his co-accused down with him by coloring his story with fabrications which he expected would easily stick together what with the newspaper notoriety of one and the sensationalism caused by the

other. But Roger Chavez' accusations of Asistio's participation is utterly uncorroborated. And coming, as it does, from a man who has had at least two convictions for acts not very different from those charged in this information, the Court would be too gullible if it were to give full credence to his words even if they concerned a man no less notorious than himself.7 The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no one but Roger Chavez to blame. The sum of all these is that the trial court freed all the accused except Roger Chavez who was found guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly sentenced to suffer an indeterminate penalty of not less than ten (10) years, one (1) day, as minimum and not more than fourteen (14) years, eight (8) months and one (1) day as maximum, to indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to undergo the accessory penalties prescribed by law, and to pay the costs. The Thunderbird car then in the custody of the NBI was ordered to be turned over to Ricardo Sumilang, who was directed to return to Asistio the sum of P1,000.00 unless the latter chose to pay P21,500.00, representing the balance of the contract price for the car. The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court of Appeals. On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger Chavez, to show cause within ten days from notice why Chavez' appeal should not be considered abandoned and dismissed. Reason for this is that said lawyer received notice to file brief on December 28, 1967 and the period for the filing thereof lapsed on January 27, 1968 without any brief having been filed. On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she were allowed to file appellant's brief she would go along with the factual findings of the court below but will show however that its conclusion is erroneous.8 On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to dismiss the appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals, through a per curiam resolution, disposed to maintain its May 14 resolution dismissing the appeal, directed the City Warden of Manila where Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment below, and ordered remand of the case to the Quezon City court for execution of judgment. It was at this stage that the present proceedings were commenced in this Court. Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to grips with the main problem presented. We concentrate attention on that phase of the issues which relates petitioner's assertion that he was compelled to testify against himself. For indeed if this one question is resolved in the affirmative, we need not reach the others; in which case, these should not be pursued here. 1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right — constitutionally entrenched — against self-incrimination. He asks that the hand of this Court be made to bear down upon his conviction; that he be relieved of the effects thereof. He asks us to consider the constitutional injunction that "No person shall be compelled to be a witness against himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled: "(e) To be exempt from being a witness against himself." . It has been said that forcing a man to be a witness against himself is at war with "the fundamentals of a republican government"; 10 that [i]t may suit the purposes of despotic power but it can not abide the pure atmosphere of political liberty and personal freedom."11 Mr. Justice Abad Santos recounts the historical background of this constitutional inhibition, thus: " "The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions of confessions of

the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press, the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821)." 12 Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the early days "in a revolt against the thumbscrew and the rack." 13 An old Philippine case [1904] 14 speaks of this constitutional injunction as "older than the Government of the United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the accused person"; and as having been adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses with which they were charged."

People would be to incriminate him. 21 The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his conviction." 22 This rule may apply even to a co-defendant in a joint trial.23

So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; it is mandatory; it secures to a defendant a valuable and substantive right; 15 it is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of the United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted." 16

But surely, counsel could not object to have the accused called on the witness stand.

It is in this context that we say that the constitutional guarantee may not be treated with unconcern. To repeat, it is mandatory; it secures to every defendant a valuable and substantive right. Tañada and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional proscription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every species and degree of which the law abhors. 17 Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand — with undiluted, unfettered exercise of his own free, genuine will. Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the defendant." 18 2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he broadened by the clear cut statement that he will not testify. But petitioner's protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness stand including the accused," and that defense counsel "could not object to have the accused called on the witness stand." The cumulative impact of all these is that accused-petitioner had to take the stand. He was thus peremptorily asked to create evidence against himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law, and jurisprudence. Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, 19 and accused may altogether refuse to take the witness stand and refuse to answer any and all questions. 20 For, in reality, the purpose of calling an accused as a witness for the

And the guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence against himself "is not the probability of the evidence but it is the capability of abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to placate petitioner with these words:. What he will testify to does not necessarily incriminate him, counsel. And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused. If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him. Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him.

Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in VIII Wigmore, p. 355, 25 While a defendant's knowledge of the facts remains concealed within his bosom, he is safe; but draw it from thence, and he is exposed" — to conviction. The judge's words heretofore quoted — "But surely counsel could not object to have the accused called on the witness stand" — wielded authority. By those words, petitioner was enveloped by a coercive force; they deprived him of his will to resist; they foreclosed choice; the realities of human nature tell us that as he took his oath to tell the truth, the whole truth and nothing but the truth, no genuine consent underlay submission to take the witness stand. Constitutionally sound consent was absent. 3. Prejudice to the accused for having been compelled over his objections to be a witness for the People is at once apparent. The record discloses that by leading questions Chavez, the accused, was made to affirm his statement given to the NBI agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement detailed the plan and execution thereof by Sumilang (Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to narrate the same anew in open court. He identified the Thunderbird car involved in the case. 27 The decision convicting Roger Chavez was clearly of the view that the case for the People was built primarily around the admissions of Chavez himself. The trial court described Chavez as the "star witness for the prosecution". Indeed, the damaging facts forged in the decision were drawn directly from the lips of Chavez as a prosecution witness and of course Ricardo Sumilang for the defense. There are the unequivocal statements in the decision that "even accused Chavez" identified "the very same Thunderbird that Johnson Lee had offered for sale"; that Chavez "testimony as witness for the prosecution establishes his guilt beyond reasonable doubt and that Chavez is "a self-confessed culprit". 1äwphï1.ñët 4. With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless answered the questions inspite of his fear of being accused of perjury or being put under contempt, this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least on direct examination would be taken right then and thereon the first day of the trial. It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no objections to questions propounded to him were made. Here involve is

not a mere question of self-incrimination. It is a defendant's constitutional immunity from being called to testify against himself. And the objection made at the beginning is a continuing one. 1äwphï1.ñët There is therefore no waiver of the privilege. "To be effective, a waiver must be certain and unequivocal, and intelligently, understandably, and willingly made; such waiver following only where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence." 28 The teaching in Johnson vs. Zerbst 29 is this: "It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur. The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his guilt, still, his original claim remains valid. For the privilege, we say again, is a rampart that gives protection - even to the guilty. 30 5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. 32 Such defect results in the absence or loss of jurisdiction 33 and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated. 34 That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. 35 This writ may issue even if another remedy which is less effective may be availed of by the defendant. 36Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. 37 The writ may be granted upon a judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of habeas corpus as an extraordinary remedy must be liberally given effect 40 so as to protect well a person whose liberty is at stake. The propriety of the writ was given the nod in that case, involving a violation of another constitutional right, in this wise: Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of Counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a Federal Court's authority. When this right is properly waived, the assistance of Counsel is no longer a necessary element of the Court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his liberty. A court's jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to failure to complete the court — as the Sixth Amendment requires — by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereundermay obtain release of habeas corpus. 41 Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. ... " 42 6. Respondents' return 43 shows that petitioner is still serving under a final and valid judgment of conviction for another offense. We should guard against the improvident issuance of an order discharging a petitioner from confinement. The position we take here is that petitioner herein is entitled to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, under which he was prosecuted and convicted.

Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden of the City Jail of Manila or the Director of Prisons or any other officer or person in custody of petitioner Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon City Branch, in Criminal Case Q-5311, entitled "People of the Philippines, plaintiff, vs. Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from custody, unless he is held, kept in custody or detained for any cause or reason other than the said judgment in said Criminal Case Q5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the discharge herein directed shall be effected when such other cause or reason ceases to exist. No costs. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and Fernando, JJ., concur. Castro, J., concurs in a separate opinion.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 16444 September 8, 1920 EMETERIA VILLAFLOR, petitioner, vs. RICARDO SUMMERS, sheriff of the City of Manila, respondent. Alfredo Calupitan, and Gibbs, McDonough & Johnson for petitioner. Assistant City of Fiscal Felix for respondent. MALCOLM, J.: The petitioner prays that a writ of habeas corpus issue to restore her to her liberty. The facts are not dispute. In a criminal case pending before the Court of First Instance of the city of Manila, Emeteria Villaflor and Florentino Souingco are charged with the crime of adultery. On this case coming on for trial before the Hon. Pedro Concepcion, Judge of First Instance, upon the petitioner of the assistant fiscal for the city of Manila, the court ordered the defendant Emeteria Villaflor, nor become the petitioner herein, to submit her body to the examination of one or two competent doctors to determine if she was pregnant or not. The accused refused to obey the order on the ground that such examination of her person was a violation of the constitutional provision relating to self-incrimination. Thereupon she was found in contempt of court and was ordered to be committed to Bilibid Prison until she should permit the medical examination required by the court. The sole legal issue from the admitted facts is whether the compelling of a woman to permit her body to be examined by physicians to determine if she is pregnant, violates that portion of the Philippine Bill of Rights and that portion of our Code of Criminal Procedure which find their origin in the Constitution of the United States and practically all state constitutions and in the common law rules of evidence, providing that no person shall be compelled in any criminal case to be a witness against himself. (President's Instructions to the Philippine Commission; Act of Congress of July 1, 1902, section 5, paragraph 3; Act of Congress of August 29, 1916, section 3; paragraph 3; Code of Criminal Procedure, section 15 [4]; United States Constitution, fifth amendment.) Counsel for petitioner argues that such bodily exhibition is an infringement of the constitutional provision; the representative of the city fiscal contends that it is not an infringement of the constitutional provision. The trial judge in the instant case has held with the fiscal; while it is brought to our notice that a judge of the same court has held on an identical question as contended for by the attorney for the accused and petitioner. The authorities are abundant but conflicting. What may be termed the conservative courts emphasize greatly the humanitarianism of the constitutional provisions and are pleased to extend the privilege in order that its mantle may cover any fact by which the accused is compelled to make evidence against himself. (Compare State vs. Jacobs [1858], 50 N. C., 259 with State vs. Ah Chuey [1879], 14 Nev., 79. See further State vs. Ah Nordstrom [1893], 7 Wash., 506; State vs. Height [1902]. 117 Iowa., 650; Thornton vs. State [1903], 117 Wis., 338.) A case concordant with this view and almost directly in point is People vs. McCoy ([1873], 45 How. Pr., 216). A woman was charged with the crime of infanticide. The corner directed two physicians to go to the jail and examine her private parts to determine whether she had recently been delivered of a child. She objected to the examination, but being threatened with force, yielded, and the examination was had. The evidence of these physicians was offered at the trial and ruled out. The court said that the proceeding was in violation of the spirit and meaning of the Constitution, which declares that "no person shall be compelled in any criminal case to be a witness against himself." Continuing, the court said: "They might as well have sworn the prisoner, and compelled her, by threats, to testify that she had been pregnant, and had been delivered of a child, as to have compelled her, by threats, to allow them to look into her person, with the aid of a speculum, to ascertain whether she had been pregnant and been delivered of a child. . . . Has this court the right to compel the prisoner now to submit to an examination they are of the opinion she is not a virgin, and has had a child? It is not possible that this court has that right; and it is too clear to admit of argument that evidence thus obtained would be inadmissible against the prisoner." It may be revealing a judicial secret, but nevertheless we cannot refrain from saying that, greatly impressed with the weight of these decisions, especially the one written by Mr. Justice McClain, in State vs. Height, supra, the instant case was reported by the writer with the tentative recommendation that the court should lay down the general rule that a defendant can be compelled to disclose only those parts of the body which are not usually covered. Buth having disabused our minds of a too sensitive appreciation of the rights of accused persons, and having been able, as we think, to

penetrate through the maze of law reports to the policy which lies behind the constitutional guaranty and the common law principle, we have come finally to take our stand with what we believe to be the reason of the case. In contradistinction to the cases above-mentioned are others which seem to us more progressive in nature. Among these can be prominently mentioned decisions of the United States Supreme Court, and the Supreme Court of these Islands. Thus, the always forward looking jurist, Mr. Justice Holmes, in the late case of Holt vs. United States ([1910], 218 U. S., 245), in resolving an objection based upon what he termed "an extravagant extension of the Fifth Amendment," said: "The prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." (See also, of same general tenor, decision of Mr. Justice Day in Adams vs. New York [1903], 192 U. S., 585.) The Supreme Court of the Philippine Islands, in two decisions, has seemed to limit the protection to a prohibition against compulsory testimonial self-incrimination. The constitutional limitation was said to be "simply a prohibition against legal process to extract from the defendant's own lips, against his will, an admission of his guilt." (U. S. vs. Tan Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and the derivatory principle announced in 16 Corpus Juris, 567, 568, citing the United States Supreme Court and the Supreme Court of the Philippine Islands as authority.) Although we have stated s proposition previously announced by this court and by the highest tribunal in the United States, we cannot unconcernedly leave the subject without further consideration. Even in the opinion Mr. Justice Holmes, to which we have alluded, there was inserted the careful proviso that "we need not consider how far a court would go in compelling a man to exhibit himself." Other courts have likewise avoided any attempt to determine the exact location of the dividing line between what is proper and what is improper in this very broad constitutional field. But here before us is presented what would seem to be the most extreme case which could be imagined. While the United States Supreme Court could nonchalantly decree that testimony that an accused person put on a blouse and it fitted him is not a violation of the constitutional provision, while the Supreme Court of Nuevada could go so far as to require the defendant to roll up his sleeve in order to disclose tattoo marks, and while the Supreme Court of the Philippine Islands could permit substances taken from the person of an accused to be offered in evidence, none of these even approach in apparent harshness an order to make a woman, possibly innocent, to disclose her body in all of its sanctity to the gaze of strangers. We can only consistently consent to the retention of a principle which would permit of such a result by adhering steadfastly to the proposition that the purpose of the constitutional provision was and is merely to prohibit testimonial compulsion. So much for the authorities. For the nonce we would prefer to forget them entirely, and here in the Philippines, being in the agrreable state of breaking new ground, would rather desire our decision to rest on a strong foundation of reason and justice than on a weak one blind adherence to tradition and precedent. Moreover, we believe that an unbiased consideration of the history of the constitutional provisions will disclose that our conclusion is in exact accord with the causes which led to its adoption. The maxim of the common law, Nemo tenetur seipsum accusare, was recognized in England in early days, but not in the other legal systems of the world, in a revolt against the thumbscrew and the rack. A legal shield was raised against odious inquisitorial methods of interrogating an accused person by which to extort unwilling confessions with the ever present temptation to commit the crime of perjury. The kernel of the privilege as disclosed by the textwriters was testimonial compulsion. As forcing a man to be a witness against himself was deemed contrary to the fundamentals of republican government, the principle was taken into the American Constitutions, and from the United States was brought to the Philippine Islands, in exactly as wide — but no wider — a scope as it existed in old English days. The provision should here be approached in no blindly worshipful spirit, but with a judicious and a judicial appreciation of both its benefits and its abuses. (Read the scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71, and 15 Harvard L. R., 1902, p. 610 found in 4 Wigmore on Evidence, pp. 3069 et seq., and U. S. vs. Navarro [1904], Phil., 143.) Perhaps the best way to test the correctness of our position is to go back once more to elements and ponder on what is the prime purpose of a criminal trial. As we view it, the object of having criminal laws is to purgue the community of persons who violate the laws to the great prejudice of their fellow men. Criminal procedure, the rules of evidence, and constitutional provisions, are then provided, not to protect the guilty but to protect the innocent. No rule is intemended to be so rigid as to embarrass the administration of justice in its endeavor to ascertain the truth. No accused person should be afraid of the use of any method which will tend to establish the truth. For instance, under the facts before us, to use torture to make the defendant admit her

guilt might only result in including her to tell a falsehood. But no evidence of physical facts can for any substantial reason be held to be detrimental to the accused except in so far as the truth is to be avoided in order to acquit a guilty person. Obviously a stirring plea can be made showing that under the due process of law cause of the Constitution every person has a natural and inherent right to the possession and control of his own body. It is extremely abhorrent to one's sense of decency and propriety to have the decide that such inviolability of the person, particularly of a woman, can be invaded by exposure to another's gaze. As Mr. Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891], 141 U. S., 250) said, "To compel any one, and especially a woman, to lay bare the body, or to submit to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass." Conceded, and yet, as well suggested by the same court, even superior to the complete immunity of a person to be let alone is the inherent which the public has in the orderly administration of justice. Unfortunately, all too frequently the modesty of witnesses is shocked by forcing them to answer, without any mental evasion, questions which are put to them; and such a tendency to degrade the witness in public estimation does not exempt him from the duty of disclosure. Between a sacrifice of the ascertainment of truth to personal considerations, between a disregard of the public welfare for refined notions of delicacy, law and justice cannot hesitate. The protection of accused persons has been carried to such an unwarranted extent that criminal trials have sometimes seemed to be like a game of shuttlecocks, with the judge as referee, the lawyers as players, the criminal as guest of honor, and the public as fascinated spectators. Against such a loose extension of constitutional guaranties we are here prepared to voice our protest. Fully conscious that we are resolving a most extreme case in a sense, which on first impression is a shock to one's sensibilities, we must nevertheless enforce the constitutional provision in this jurisdiction in accord with the policy and reason thereof, undeterred by merely sentimental influences. Once again we lay down the rule that the constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against himself, is limited to a prohibition against compulsory testimonial self-incrimination. The corollary to the proposition is that, an ocular inspection of the body of the accused is permissible. The proviso is that torture of force shall be avoided. Whether facts fall within or without the rule with its corollary and proviso must, of course, be decided as cases arise. It is a reasonable presumption that in an examination by reputable and disinterested physicians due care will be taken not to use violence and not to embarass the patient any more than is absolutely necessary. Indeed, no objection to the physical examination being made by the family doctor of the accused or by doctor of the same sex can be seen. Although the order of the trial judge, acceding to the request of the assistant fiscal for an examination of the person of the defendant by physicians was phrased in absolute terms, it should, nevertheless, be understood as subject to the limitations herein mentioned, and therefore legal. The writ of habeas corpus prayed for is hereby denied. The costs shall be taxed against the petitioner. So ordered. Mapa, C.J., Araullo, Avanceña, Moir and Villamor, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 32025 September 23, 1929 FRANCISCO BELTRAN, petitioner, vs. FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO JOSE, Provincial Fiscal of Isabela,respondents. Gregorio P. Formoso and Vicente Formoso for petitioner. The respondents in their own behalf. ROMUALDEZ, J.: This is a petition for a writ of prohibition, wherein the petitioner complains that the respondent judge ordered him to appear before the provincial fiscal to take dictation in his own handwriting from the latter. The order was given upon petition of said fiscal for the purpose of comparing the petitioner's handwriting and determining whether or not it is he who wrote certain documents supposed to be falsified. There is no question as to the facts alleged in the complaint filed in these proceedings; but the respondents contend that the petitioner is not entitled to the remedy applied for, inasmuch as the order prayed for by the provincial fiscal and later granted by the court below, and again which the instant action was brought, is based on the provisions of section 1687 of the Administrative Code and on the doctrine laid down in the cases of People vs. Badilla (48 Phil., 718); United States vs. Tan Teng (23 Phil., 145); United States vs. Ong Siu Hong (36 Phil., 735), cited by counsel for the respondents, and in the case of Villaflor vs. Summers (41 Phil., 62) cited by the judge in the order in question. Of course, the fiscal under section 1687 of the Administrative Code, and the proper judge, upon motion of the fiscal, may compel witnesses to be present at the investigation of any crime or misdemeanor. But this power must be exercised without prejudice to the constitutional rights of persons cited to appear. And the petitioner, in refusing to perform what the fiscal demanded, seeks refuge in the constitutional provision contained in the Jones Law and incorporated in General Orders, No. 58. Therefore, the question raised is to be decided by examining whether the constitutional provision invoked by the petitioner prohibits compulsion to execute what is enjoined upon him by the order against which these proceedings were taken. Said provision is found in paragraph 3, section 3 of the Jones Law which (in Spanish) reads: "Ni se le obligara a declarar en contra suya en ningun proceso criminal" and has been incorporated in our Criminal Procedure (General Orders, No. 58) in section 15 (No. 4 ) and section 56. As to the extent of the privilege, it should be noted first of all, that the English text of the Jones Law, which is the original one, reads as follows: "Nor shall be compelled in any criminal case to be a witness against himself." This text is not limited to declaracion but says "to be a witness." Moreover, as we are concerned with a principle contained both in the Federal constitution and in the constitutions of several states of the United States, but expressed differently, we should take it that these various phrasings have a common conception. In the interpretation of the principle, nothing turns upon the variations of wording in the constitutional clauses; this much is conceded (ante, par. 2252). It is therefore immaterial that the witness is protected by one constitution from 'testifying', or by another from 'furnishing evidence', or by another from 'giving evidence,' or by still another from 'being a witness.' These various phrasings have a common conception, in respect to the form of the protected disclosure. What is that conception? (4 Wigmore on Evidence, p. 863, 1923 ed.) As to its scope, this privilege is not limited precisely to testimony, but extends to all giving or furnishing of evidence.

The rights intended to be protected by the constitutional provision that no man accused of crime shall be compelled to be a witness against himself is so sacred, and the pressure toward their relaxation so great when the suspicion of guilt is strong and the evidence obscure, that is the duty of courts liberally to construe the prohibition in favor of personal rights, and to refuse to permit any steps tending toward their invasion. Hence, there is the well-established doctrine that the constitutional inhibition is directed not merely to giving of oral testimony, but embraces as well the furnishing of evidence by other means than by word of mouth, the divulging, in short, of any fact which the accused has a right to hold secret. (28 R. C. L., paragraph 20, page 434 and notes.) (Emphasis ours.) The question, then, is reduced to a determination of whether the writing from the fiscal's dictation by the petitioner for the purpose of comparing the latter's handwriting and determining whether he wrote certain documents supposed to be falsified, constitutes evidence against himself within the scope and meaning of the constitutional provision under examination. Whenever the defendant, at the trial of his case, testifying in his own behalf, denies that a certain writing or signature is in his own hand, he may on cross-examination be compelled to write in open court in order that the jury maybe able to compare his handwriting with the one in question. It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch as the defendant, in offering himself as witness in his own behalf, waived his personal privileges. Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where the judge asked the defendant to write his name during the hearing, and the latter did so voluntarily. But the cases so resolved cannot be compared to the one now before us. We are not concerned here with the defendant, for it does not appear that any information was filed against the petitioner for the supposed falsification, and still less as it a question of the defendant on trial testifying and under cross-examination. This is only an investigation prior to the information and with a view to filing it. And let it further be noted that in the case of Sprouse vs. Com., the defendant performed the act voluntarily. We have also come upon a case wherein the handwriting or the form of writing of the defendant was obtained before the criminal action was instituted against him. We refer to the case of People vs. Molineux (61 Northeastern Reporter, 286). Neither may it be applied to the instant case, because there, as in the aforesaid case of Sprouse vs. Com., the defendant voluntarily offered to write, to furnish a specimen of his handwriting. We cite this case particularly because the court there gives prominence to the defendant's right to decline to write, and to the fact that he voluntarily wrote. The following appears in the body of said decision referred to (page 307 of the volume cited): The defendant had the legal right to refuse to write for Kinsley. He preferred to accede to the latter's request, and we can discover no ground upon which the writings thus produced can be excluded from the case. (Emphasis ours.) For the reason it was held in the case of First National Bank vs. Robert (41 Mich., 709; 3 N. W., 199), that the defendant could not be compelled to write his name, the doctrine being stated as follows: The defendant being sworn in his own behalf denied the endorsement. He was then cross-examined the question in regard to his having signed papers not in the case, and was asked in particular whether he would not produce signatures made prior to the note in suit, and whether he would not write his name there in the court. The judge excluded all these inquiries, on objection, and it is of these rulings that complaint is made. The object of the questions was to bring into the case extrinsic signatures, for the purpose of comparison by the jury, and we think that the judge was correct in ruling against it.

It is true that the eminent Professor Wigmore, in his work cited (volume 4, page 878), says: Measuring or photographing the party is not within the privilege. Nor it is the removal or replacement of his garments or shoes. Nor is the requirement that the party move his body to enable the foregoing things to be done. Requiring him to make specimens of handwriting is no more than requiring him to move his body . . ." but he cites no case in support of his last assertion on specimens of handwriting. We note that in the same paragraph 2265, where said authors treats of "Bodily Exhibition." and under preposition "1. A great variety of concrete illustrations have been ruled upon," he cites many cases, among them that of People vs. Molineux (61 N. E., 286) which, as we have seen, has no application to the case at bar because there the defendant voluntary gave specimens of his handwriting, while here the petitioner refuses to do so and has even instituted these prohibition proceedings that he may not be compelled to do so. Furthermore, in the case before us, writing is something more than moving the body, or the hands, or the fingers; writing is not a purely mechanical act, because it requires the application of intelligence and attention; and in the case at bar writing means that the petitioner herein is to furnish a means to determine whether or not he is the falsifier, as the petition of the respondent fiscal clearly states. Except that it is more serious, we believe the present case is similar to that of producing documents or chattels in one's possession. And as to such production of documents or chattels. which to our mind is not so serious as the case now before us, the same eminent Professor Wigmore, in his work cited, says (volume 4, page 864): . . . 2264. Production or Inspection of Documents and Chattels. — 1. It follows that the production of documents or chattels by a person (whether ordinary witness or party-witness) in response to a subpoena, or to a motion to order production, or to other form of process treating him as a witness ( i.e. as a person appearing before a tribunal to furnish testimony on his moral responsibility for truthtelling), may be refused under the protection of the privilege; and this is universally conceded. (And he cites the case of People vs. Gardner, 144 N. Y., 119; 38 N.E., 1003)

The privilege not to give self-incriminating evidence, while absolute when claimed, maybe waived by any one entitled to invoke it. (28 R. C. L., paragraph 29, page 442, and cases noted.) The same holds good in the case of United States vs. Tan Teng (23 Phil., 145), were the defendant did not opposethe extraction from his body of the substance later used as evidence against him. In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that the court preferred to rest its decision on the reason of the case rather than on blind adherence to tradition. The said reason of the case there consisted in that it was the case of the examination of the body by physicians, which could be and doubtless was interpreted by this court, as being no compulsion of the petitioner therein to furnish evidence by means of testimonial act. In reality she was not compelled to execute any positive act, much less a testimonial act; she was only enjoined from something preventing the examination; all of which is very different from what is required of the petitioner of the present case, where it is sought to compel him to perform a positive, testimonial act, to write and give a specimen of his handwriting for the purpose of comparison. Besides, in the case of Villamor vs. Summers, it was sought to exhibit something already in existence, while in the case at bar, the question deals with something not yet in existence, and it is precisely sought to compel the petitioner to make, prepare, or produce by this means, evidence not yet in existence; in short, to create this evidence which may seriously incriminate him. Similar considerations suggest themselves to us with regard to the case of United States vs. Ong Siu Hong (36 Phil., 735), wherein the defendant was not compelled to perform any testimonial act, but to take out of his mouth the morphine he had there. It was not compelling him to testify or to be a witness or to furnish, much less make, prepare, or create through a testimonial act, evidence for his own condemnation. Wherefore, we find the present action well taken, and it is ordered that the respondents and those under their orders desist and abstain absolutely and forever from compelling the petitioner to take down dictation in his handwriting for the purpose of submitting the latter for comparison. Without express pronouncement as to costs. So ordered.

We say that, for the purposes of the constitutional privilege, there is a similarity between one who is compelled to produce a document, and one who is compelled to furnish a specimen of his handwriting, for in both cases, the witness is required to furnish evidence against himself. And we say that the present case is more serious than that of compelling the production of documents or chattels, because here the witness is compelled to write and create, by means of the act of writing, evidence which does not exist, and which may identify him as the falsifier. And for this reason the same eminent author, Professor Wigmore, explaining the matter of the production of documents and chattels, in the passage cited, adds: For though the disclosure thus sought be not oral in form, and though the documents or chattels be already in existence and not desired to be first written and created by testimonial act or utterance of the person in response to the process, still no line can be drawn short of any process which treats him as a witness; because in virtue it would be at any time liable to make oath to the identity or authenticity or origin of the articles produced. (Ibid., pp. 864-865.) (Emphasis ours.) It cannot be contended in the present case that if permission to obtain a specimen of the petitioner's handwriting is not granted, the crime would go unpunished. Considering the circumstance that the petitioner is a municipal treasurer, according to Exhibit A, it should not be a difficult matter for the fiscal to obtained genuine specimens of his handwriting. But even supposing it is impossible to obtain specimen or specimens without resorting to the means complained herein, that is no reason for trampling upon a personal right guaranteed by the constitution. It might be true that in some cases criminals may succeed in evading the hand of justice, but such cases are accidental and do not constitute the raison d' etre of the privilege. This constitutional privilege exists for the protection of innocent persons. With respect to the judgments rendered by this court and cited on behalf of the respondents, it should be remembered that in the case of People vs. Badilla (48 Phil., 718), it does not appear that the defendants and other witnesses were questioned by the fiscal against their will, and if they did not refuse to answer, they must be understood to have waived their constitutional privilege, as they could certainly do.

Avanceña, C. J., Johnson, Street, Villamor, Johns, and Villa-Real, JJ., concur.

Republic of the Philippines SUPREME COURT Baguio City EN BANC G.R. No. 180016 April 29, 2014 LITO CORPUZ, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION

However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to sign a blank receipt. He claimed that the same receipt was then dated May 2, 1991 and used as evidence against him for the supposed agreement to sell the subject pieces of jewelry, which he did not even see. After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the Information. The dispositive portion of the decision states: WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of Estafa under Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;

PERALTA, J.: This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the Decision1 dated March 22, 2007 and Resolution2 dated September 5, 2007 of the Court of Appeals (CA), which affirmed with modification the Decision3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46, San Fernando City, finding the petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the penalty imposable; accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting of an imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2) MONTHS of Prision Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify private complainant Danilo Tangcoy the amount of ₱98,000.00 as actual damages, and to pay the costs of suit.

The antecedent facts follow. SO ORDERED. Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo City sometime in 1990. Private complainant was then engaged in the business of lending money to casino players and, upon hearing that the former had some pieces of jewelry for sale, petitioner approached him on May 2, 1991 at the same casino and offered to sell the said pieces of jewelry on commission basis. Private complainant agreed, and as a consequence, he turned over to petitioner the following items: an 18k diamond ring for men; a woman's bracelet; one (1) men's necklace and another men's bracelet, with an aggregate value of ₱98,000.00, as evidenced by a receipt of even date. They both agreed that petitioner shall remit the proceeds of the sale, and/or, if unsold, to return the same items, within a period of 60 days. The period expired without petitioner remitting the proceeds of the sale or returning the pieces of jewelry. When private complainant was able to meet petitioner, the latter promised the former that he will pay the value of the said items entrusted to him, but to no avail. Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows: That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, after having received from one Danilo Tangcoy, one (1) men's diamond ring, 18k, worth ₱45,000.00; one (1) three-baht men's bracelet, 22k, worth ₱25,000.00; one (1) twobaht ladies' bracelet, 22k, worth ₱12,000.00, or in the total amount of Ninety-Eight Thousand Pesos (₱98,000.00), Philippine currency, under expressed obligation on the part of said accused to remit the proceeds of the sale of the said items or to return the same, if not sold, said accused, once in possession of the said items, with intent to defraud, and with unfaithfulness and abuse of confidence, and far from complying with his aforestated obligation, did then and there wilfully, unlawfully and feloniously misappropriate, misapply and convert to his own personal use and benefit the aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite repeated demands, the accused failed and refused to return the said items or to remit the amount of Ninety- Eight Thousand Pesos (₱98,000.00), Philippine currency, to the damage and prejudice of said Danilo Tangcoy in the aforementioned amount. CONTRARY TO LAW. On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty. Thereafter, trial on the merits ensued. The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo Tangcoy. On the other hand, the defense presented the lone testimony of petitioner, which can be summarized, as follows: Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in the financing business of extending loans to Base employees. For every collection made, they earn a commission. Petitioner denied having transacted any business with private complainant.

The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed the decision of the RTC, thus: WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the imposable prison term, such that accused-appellant shall suffer the indeterminate penalty of 4 years and 2 months of prision correccional, as minimum, to 8 years of prision mayor, as maximum, plus 1 year for each additional ₱10,000.00, or a total of 7 years. The rest of the decision stands. SO ORDERED. Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present petition stating the following grounds: A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE; B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE IN THAT 1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD; 2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY 1991; C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED; D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH 1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE INCIDENT;

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN EXPERIENCE; 3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE; 4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE. In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following counter-arguments: The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility. The information was not defective inasmuch as it sufficiently established the designation of the offense and the acts complained of. The prosecution sufficiently established all the elements of the crime charged. This Court finds the present petition devoid of any merit. The factual findings of the appellate court generally are conclusive, and carry even more weight when said court affirms the findings of the trial court, absent any showing that the findings are totally devoid of support in the records, or that they are so glaringly erroneous as to constitute grave abuse of discretion.4 Petitioner is of the opinion that the CA erred in affirming the factual findings of the trial court. He now comes to this Court raising both procedural and substantive issues. According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a receipt dated May 2, 1991 marked as Exhibit "A" and its submarkings, although the same was merely a photocopy, thus, violating the best evidence rule. However, the records show that petitioner never objected to the admissibility of the said evidence at the time it was identified, marked and testified upon in court by private complainant. The CA also correctly pointed out that petitioner also failed to raise an objection in his Comment to the prosecution's formal offer of evidence and even admitted having signed the said receipt. The established doctrine is that when a party failed to interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be considered as waived.5 Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed against him. He contends that the Information does not contain the period when the pieces of jewelry were supposed to be returned and that the date when the crime occurred was different from the one testified to by private complainant. This argument is untenable. The CA did not err in finding that the Information was substantially complete and in reiterating that objections as to the matters of form and substance in the Information cannot be made for the first time on appeal. It is true that the gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b) of the RPC is the appropriation or conversion of money or property received to the prejudice of the owner6 and that the time of occurrence is not a material ingredient of the crime, hence, the exclusion of the period and the wrong date of the occurrence of the crime, as reflected in the Information, do not make the latter fatally defective. The CA ruled:

does not render the Information ipso facto defective. Moreover, the said date is also near the due date within which accused-appellant should have delivered the proceeds or returned the said [pieces of jewelry] as testified upon by Tangkoy, hence, there was sufficient compliance with the rules. Accused-appellant, therefore, cannot now be allowed to claim that he was not properly apprised of the charges proferred against him.7 It must be remembered that petitioner was convicted of the crime of Estafa under Article 315, paragraph 1 (b) of the RPC, which reads: ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow. 1. With unfaithfulness or abuse of confidence, namely: xxxx (b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property; x x x The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same; (b) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another; and (d) that there is a demand made by the offended party on the offender.8 Petitioner argues that the last element, which is, that there is a demand by the offended party on the offender, was not proved. This Court disagrees. In his testimony, private complainant narrated how he was able to locate petitioner after almost two (2) months from the time he gave the pieces of jewelry and asked petitioner about the same items with the latter promising to pay them. Thus: PROS. MARTINEZ q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been finished on 5 July 1991, the question is what happens (sic) when the deadline came? a I went looking for him, sir. q For whom? a Lito Corpuz, sir. q Were you able to look (sic) for him? a I looked for him for a week, sir.

x x x An information is legally viable as long as it distinctly states the statutory designation of the offense and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of Court provides that a complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. In the case at bar, a reading of the subject Information shows compliance with the foregoing rule. That the time of the commission of the offense was stated as " on or about the fifth (5th) day of July, 1991" is not likewise fatal to the prosecution's cause considering that Section 11 of the same Rule requires a statement of the precise time only when the same is a material ingredient of the offense. The gravamen of the crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or conversion of money or property received to the prejudice of the offender. Thus, aside from the fact that the date of the commission thereof is not an essential element of the crime herein charged, the failure of the prosecution to specify the exact date

q Did you know his residence? a Yes, sir. q Did you go there? a Yes, sir. q Did you find him? a No, sir. q Were you able to talk to him since 5 July 1991?

a I talked to him, sir. q How many times? a Two times, sir. q What did you talk (sic) to him? a About the items I gave to (sic) him, sir. q Referring to Exhibit A-2? a Yes, sir, and according to him he will take his obligation and I asked him where the items are and he promised me that he will pay these amount, sir. q Up to this time that you were here, were you able to collect from him partially or full? a No, sir.9 No specific type of proof is required to show that there was demand.10 Demand need not even be formal; it may be verbal.11 The specific word "demand" need not even be used to show that it has indeed been made upon the person charged, since even a mere query as to the whereabouts of the money [in this case, property], would be tantamount to a demand.12 As expounded in Asejo v. People:13 With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa need not be formal or written. The appellate court observed that the law is silent with regard to the form of demand in estafa under Art. 315 1(b), thus: When the law does not qualify, We should not qualify. Should a written demand be necessary, the law would have stated so. Otherwise, the word "demand" should be interpreted in its general meaning as to include both written and oral demand. Thus, the failure of the prosecution to present a written demand as evidence is not fatal. In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the accused, we held that the query was tantamount to a demand, thus: x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of embezzlement. It so happens only that failure to account, upon demand for funds or property held in trust, is circumstantial evidence of misappropriation. The same way, however, be established by other proof, such as that introduced in the case at bar.14 In view of the foregoing and based on the records, the prosecution was able to prove the existence of all the elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or on commission basis, as shown in the receipt dated May 2, 1991 with an obligation to sell or return the same within sixty (60) days, if unsold. There was misappropriation when petitioner failed to remit the proceeds of those pieces of jewelry sold, or if no sale took place, failed to return the same pieces of jewelry within or after the agreed period despite demand from the private complainant, to the prejudice of the latter. Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this Court gives great respect to the evaluation of the trial court for it had the unique opportunity to observe the demeanor of witnesses and their deportment on the witness stand, an opportunity denied the appellate courts, which merely rely on the records of the case.15 The assessment by the trial court is even conclusive and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence, especially when such finding is affirmed by the CA.16 Truth is established not by the number of witnesses, but by the quality of their testimonies, for in determining the value and credibility of evidence, the witnesses are to be weighed not numbered.17 As regards the penalty, while this Court's Third Division was deliberating on this case, the question of the continued validity of imposing on persons convicted of crimes involving property came up. The legislature apparently pegged these penalties to the value of the money and property in 1930 when it enacted the Revised Penal Code.

Since the members of the division reached no unanimity on this question and since the issues are of first impression, they decided to refer the case to the Court en banc for consideration and resolution. Thus, several amici curiae were invited at the behest of the Court to give their academic opinions on the matter. Among those that graciously complied were Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate President, and the Speaker of the House of Representatives. The parties were later heard on oral arguments before the Court en banc, with Atty. Mario L. Bautista appearing as counsel de oficio of the petitioner. After a thorough consideration of the arguments presented on the matter, this Court finds the following: There seems to be a perceived injustice brought about by the range of penalties that the courts continue to impose on crimes against property committed today, based on the amount of damage measured by the value of money eighty years ago in 1932. However, this Court cannot modify the said range of penalties because that would constitute judicial legislation. What the legislature's perceived failure in amending the penalties provided for in the said crimes cannot be remedied through this Court's decisions, as that would be encroaching upon the power of another branch of the government. This, however, does not render the whole situation without any remedy. It can be appropriately presumed that the framers of the Revised Penal Code (RPC) had anticipated this matter by including Article 5, which reads: ART. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. - Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of penal legislation. In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.18 The first paragraph of the above provision clearly states that for acts bourne out of a case which is not punishable by law and the court finds it proper to repress, the remedy is to render the proper decision and thereafter, report to the Chief Executive, through the Department of Justice, the reasons why the same act should be the subject of penal legislation. The premise here is that a deplorable act is present but is not the subject of any penal legislation, thus, the court is tasked to inform the Chief Executive of the need to make that act punishable by law through legislation. The second paragraph is similar to the first except for the situation wherein the act is already punishable by law but the corresponding penalty is deemed by the court as excessive. The remedy therefore, as in the first paragraph is not to suspend the execution of the sentence but to submit to the Chief Executive the reasons why the court considers the said penalty to be non-commensurate with the act committed. Again, the court is tasked to inform the Chief Executive, this time, of the need for a legislation to provide the proper penalty. In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in Article 5, the duty of the court is merely to report to the Chief Executive, with a recommendation for an amendment or modification of the legal provisions which it believes to be harsh. Thus: This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that there can exist no punishable act except those previously and specifically provided for by penal statute. No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit its perpetration with penal sanction, the Court of justice will be entirely powerless to punish such act. Under the provisions of this article the Court cannot suspend the execution of a sentence on the ground that the strict enforcement of the provisions of this Code would cause excessive or harsh penalty. All that the Court could do in such eventuality is to report the matter to the Chief Executive with a recommendation for an amendment or modification of the legal provisions which it believes to be harsh.20

Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino and retired Associate Justice Carolina C. Griño-Aquino, in their book, The Revised Penal Code,21 echoed the above-cited commentary, thus: The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be tempered with mercy. Generally, the courts have nothing to do with the wisdom or justness of the penalties fixed by law. "Whether or not the penalties prescribed by law upon conviction of violations of particular statutes are too severe or are not severe enough, are questions as to which commentators on the law may fairly differ; but it is the duty of the courts to enforce the will of the legislator in all cases unless it clearly appears that a given penalty falls within the prohibited class of excessive fines or cruel and unusual punishment." A petition for clemency should be addressed to the Chief Executive.22 There is an opinion that the penalties provided for in crimes against property be based on the current inflation rate or at the ratio of ₱1.00 is equal to ₱100.00 . However, it would be dangerous as this would result in uncertainties, as opposed to the definite imposition of the penalties. It must be remembered that the economy fluctuates and if the proposed imposition of the penalties in crimes against property be adopted, the penalties will not cease to change, thus, making the RPC, a self-amending law. Had the framers of the RPC intended that to be so, it should have provided the same, instead, it included the earlier cited Article 5 as a remedy. It is also improper to presume why the present legislature has not made any moves to amend the subject penalties in order to conform with the present times. For all we know, the legislature intends to retain the same penalties in order to deter the further commission of those punishable acts which have increased tremendously through the years. In fact, in recent moves of the legislature, it is apparent that it aims to broaden the coverage of those who violate penal laws. In the crime of Plunder, from its original minimum amount of ₱100,000,000.00 plundered, the legislature lowered it to ₱50,000,000.00. In the same way, the legislature lowered the threshold amount upon which the Anti-Money Laundering Act may apply, from ₱1,000,000.00 to ₱500,000.00. It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be excessive compared to the proposed imposition of their corresponding penalties. In Theft, the provisions state that:

pesos. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall be made applicable. 8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family. In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision states that the penalty is prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months). Applying the proposal, if the value of the thing stolen is ₱6,000.00, the penalty is imprisonment of arresto mayor in its medium period to prision correccional minimum period (2 months and 1 day to 2 years and 4 months). It would seem that under the present law, the penalty imposed is almost the same as the penalty proposed. In fact, after the application of the Indeterminate Sentence Law under the existing law, the minimum penalty is still lowered by one degree; hence, the minimum penalty is arresto mayor in its medium period to maximum period (2 months and 1 day to 6 months), making the offender qualified for pardon or parole after serving the said minimum period and may even apply for probation. Moreover, under the proposal, the minimum penalty after applying the Indeterminate Sentence Law is arresto menor in its maximum period to arresto mayor in its minimum period (21 days to 2 months) is not too far from the minimum period under the existing law. Thus, it would seem that the present penalty imposed under the law is not at all excessive. The same is also true in the crime of Estafa.23 Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of Theft and the damage caused in the crime of Estafa, the gap between the minimum and the maximum amounts, which is the basis of determining the proper penalty to be imposed, would be too wide and the penalty imposable would no longer be commensurate to the act committed and the value of the thing stolen or the damage caused: I. Article 309, or the penalties for the crime of Theft, the value would be modified but the penalties are not changed: 1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to ₱2,200,000.00, punished by prision mayor minimum to prision mayor medium (6 years and 1 day to 10 years).

Art. 309. Penalties. — Any person guilty of theft shall be punished by: 1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punished by prision correccional medium and to prision correccional maximum (2 years, 4 months and 1 day to 6 years).24 3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by prision correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months). 4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable by arresto mayor medium to prision correccional minimum (2 months and 1 day to 2 years and 4 months).

2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.

5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by arresto mayor (1 month and 1 day to 6 months).

3. The penalty of prision correccional in its minimum and medium periods, if the value of the property stolen is more than 200 pesos but does not exceed 6,000 pesos. 4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property stolen is over 50 pesos but does not exceed 200 pesos. 5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos. 6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos. 7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5

6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to arresto mayor medium. x x x x. II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the penalties are not changed, as follows: 1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to ₱2,200,000.00, punishable by prision correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8 years).25 2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punishable by prision correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months).26

3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by arresto mayor maximum to prision correccional minimum (4 months and 1 day to 2 years and 4 months).

But in your presentation, you were fixing the amount at One Hundred Thousand (₱100,000.00) Pesos ... DEAN DIOKNO:

4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor maximum (4 months and 1 day to 6 months). An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the incremental penalty provided under Article 315 of the RPC violates the Equal Protection Clause. The equal protection clause requires equality among equals, which is determined according to a valid classification. The test developed by jurisprudence here and yonder is that of reasonableness,27 which has four requisites:

Well, my presen ... (interrupted) JUSTICE PERALTA: For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two Thousand (₱22,000.00) Pesos you were suggesting an additional penalty of one (1) year, did I get you right? DEAN DIOKNO:

(1) The classification rests on substantial distinctions; Yes, Your Honor, that is, if the court will take the route of statutory interpretation. (2) It is germane to the purposes of the law; JUSTICE PERALTA: (3) It is not limited to existing conditions only; and Ah ... (4) It applies equally to all members of the same

class.28 DEAN DIOKNO:

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial distinctions as ₱10,000.00 may have been substantial in the past, but it is not so today, which violates the first requisite; the IPR was devised so that those who commit estafa involving higher amounts would receive heavier penalties; however, this is no longer achieved, because a person who steals ₱142,000.00 would receive the same penalty as someone who steals hundreds of millions, which violates the second requisite; and, the IPR violates requisite no. 3, considering that the IPR is limited to existing conditions at the time the law was promulgated, conditions that no longer exist today. Assuming that the Court submits to the argument of Dean Diokno and declares the incremental penalty in Article 315 unconstitutional for violating the equal protection clause, what then is the penalty that should be applied in case the amount of the thing subject matter of the crime exceeds ₱22,000.00? It seems that the proposition poses more questions than answers, which leads us even more to conclude that the appropriate remedy is to refer these matters to Congress for them to exercise their inherent power to legislate laws.

If the Court will say that they can go beyond the literal wording of the law... JUSTICE PERALTA: But if we de ... (interrupted) DEAN DIOKNO: ....then.... JUSTICE PERALTA: Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the amount ...

Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy is to go to Congress. Thus:

DEAN DIOKNO:

xxxx

No, Your Honor.

JUSTICE PERALTA:

JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down as unconstitutional because it is absurd.

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand (₱22,000.00) Pesos.

DEAN DIOKNO:

DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.

No, Your Honor.

JUSTICE PERALTA:

JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Twenty-Two Thousand (₱22,000.00) Pesos.

The Court cannot do that. DEAN DIOKNO:

DEAN DIOKNO: Could not be. Well, that would be for Congress to ... if this Court will declare the incremental penalty rule unconstitutional, then that would ... the void should be filled by Congress.

JUSTICE PERALTA:

JUSTICE PERALTA:

The only remedy is to go to Congress...

DEAN DIOKNO:

serious implications. For example, in the crime of Malversation, the penalty imposed depends on the amount of the money malversed by the public official, thus:

Yes, Your Honor. JUSTICE PERALTA: ... and determine the value or the amount.

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

DEAN DIOKNO: Yes, Your Honor. JUSTICE PERALTA: That will be equivalent to the incremental penalty of one (1) year in excess of TwentyTwo Thousand (₱22,000.00) Pesos. DEAN DIOKNO:

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos. 2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos. 3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos.

Yes, Your Honor. JUSTICE PERALTA:

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos. Thank you, Dean.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

DEAN DIOKNO: Thank you. x x x x29 Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal Supreme Court has expanded the application of a similar Constitutional provision prohibiting cruel and unusual punishment, to the duration of the penalty, and not just its form. The court therein ruled that three things must be done to decide whether a sentence is proportional to a specific crime, viz.; (1) Compare the nature and gravity of the offense, and the harshness of the penalty; (2) Compare the sentences imposed on other criminals in the same jurisdiction, i.e., whether more serious crimes are subject to the same penalty or to less serious penalties; and (3) Compare the sentences imposed for commission of the same crime in other jurisdictions. However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what respondent therein deemed cruel was the penalty imposed by the state court of South Dakota after it took into account the latter’s recidivist statute and not the original penalty for uttering a "no account" check. Normally, the maximum punishment for the crime would have been five years imprisonment and a $5,000.00 fine. Nonetheless, respondent was sentenced to life imprisonment without the possibility of parole under South Dakota’s recidivist statute because of his six prior felony convictions. Surely, the factual antecedents of Solem are different from the present controversy. With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the offense is high. Nevertheless, the rationale for the imposition of a higher penalty against a domestic servant is the fact that in the commission of the crime, the helper will essentially gravely abuse the trust and confidence reposed upon her by her employer. After accepting and allowing the helper to be a member of the household, thus entrusting upon such person the protection and safekeeping of the employer’s loved ones and properties, a subsequent betrayal of that trust is so repulsive as to warrant the necessity of imposing a higher penalty to deter the commission of such wrongful acts. There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject matter of the crime and which, by adopting the proposal, may create

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. The above-provisions contemplate a situation wherein the Government loses money due to the unlawful acts of the offender. Thus, following the proposal, if the amount malversed is ₱200.00 (under the existing law), the amount now becomes ₱20,000.00 and the penalty is prision correccional in its medium and maximum periods (2 years 4 months and 1 day to 6 years). The penalty may not be commensurate to the act of embezzlement of ₱20,000.00 compared to the acts committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the government is not generally defined by any monetary amount, the penalty (6 years and 1 month to 15 years)32 under the Anti-Graft Law will now become higher. This should not be the case, because in the crime of malversation, the public official takes advantage of his public position to embezzle the fund or property of the government entrusted to him. The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or uninhabited) where the value of the thing unlawfully taken and the act of unlawful entry are the bases of the penalty imposable, and also, in Malicious Mischief, where the penalty of imprisonment or fine is dependent on the cost of the damage caused. In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will now be the value of the thing unlawfully taken and no longer the element of force employed in entering the premises. It may likewise cause an inequity between the crime of Qualified Trespass to Dwelling under Article 280, and this kind of robbery because the former is punishable by prision correccional in its medium and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not exceeding ₱1,000.00 (₱100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or intimidation, which is the main justification of the penalty. Whereas in the crime of Robbery with force upon things, it is punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed without the penalty of Fine despite the fact that it is not merely the illegal entry that is the basis of the penalty but likewise the unlawful taking. Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be imposed is arresto mayor in its medium and maximum periods (2 months and 1 day to 6 months) if the value of the damage caused exceeds ₱1,000.00, but

under the proposal, the value of the damage will now become ₱100,000.00 (1:100), and still punishable by arresto mayor (1 month and 1 day to 6 months). And, if the value of the damaged property does not exceed ₱200.00, the penalty is arresto menor or a fine of not less than the value of the damage caused and not more than ₱200.00, if the amount involved does not exceed ₱200.00 or cannot be estimated. Under the proposal, ₱200.00 will now become ₱20,000.00, which simply means that the fine of ₱200.00 under the existing law will now become ₱20,000.00. The amount of Fine under this situation will now become excessive and afflictive in nature despite the fact that the offense is categorized as a light felony penalized with a light penalty under Article 26 of the RPC.33 Unless we also amend Article 26 of the RPC, there will be grave implications on the penalty of Fine, but changing the same through Court decision, either expressly or impliedly, may not be legally and constitutionally feasible. There are other crimes against property and swindling in the RPC that may also be affected by the proposal, such as those that impose imprisonment and/or Fine as a penalty based on the value of the damage caused, to wit: Article 311 (Theft of the property of the National Library and National Museum), Article 312 (Occupation of real property or usurpation of real rights in property), Article 313 (Altering boundaries or landmarks), Article 316 (Other forms of swindling), Article 317 (Swindling a minor), Article 318 (Other deceits), Article 328 (Special cases of malicious mischief) and Article 331 (Destroying or damaging statues, public monuments or paintings). Other crimes that impose Fine as a penalty will also be affected, such as: Article 213 (Frauds against the public treasury and similar offenses), Article 215 (Prohibited Transactions), Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable officer to render accounts), Article 219 (Failure of a responsible public officer to render accounts before leaving the country). In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are punishable by special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential Decree No. 705, as amended.34The law treats cutting, gathering, collecting and possessing timber or other forest products without license as an offense as grave as and equivalent to the felony of qualified theft.35 Under the law, the offender shall be punished with the penalties imposed under Articles 309 and 31036 of the Revised Penal Code, which means that the penalty imposable for the offense is, again, based on the value of the timber or forest products involved in the offense. Now, if we accept the said proposal in the crime of Theft, will this particular crime of Illegal Logging be amended also in so far as the penalty is concerned because the penalty is dependent on Articles 309 and 310 of the RPC? The answer is in the negative because the soundness of this particular law is not in question. With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws, and other related provisions of these laws affected by the proposal, a thorough study is needed to determine its effectivity and necessity. There may be some provisions of the law that should be amended; nevertheless, this Court is in no position to conclude as to the intentions of the framers of the Revised Penal Code by merely making a study of the applicability of the penalties imposable in the present times. Such is not within the competence of the Court but of the Legislature which is empowered to conduct public hearings on the matter, consult legal luminaries and who, after due proceedings, can decide whether or not to amend or to revise the questioned law or other laws, or even create a new legislation which will adopt to the times. Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code. During the oral arguments, counsel for the Senate informed the Court that at present, fifty-six (56) bills are now pending in the Senate seeking to amend the Revised Penal Code,37 each one proposing much needed change and updates to archaic laws that were promulgated decades ago when the political, socio-economic, and cultural settings were far different from today’s conditions. Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp legislative powers by judicial legislation and that in the course of such application or construction, it should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its terms.38 The Court should apply the law in a manner that would give effect to their letter and spirit, especially when the law is clear as to its intent and purpose. Succinctly put, the Court should shy away from encroaching upon the primary function of a co-equal branch of the Government; otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by means of judicial legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be increased by the Court when appropriate. Article 2206 of the Civil Code provides: Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death; (2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court; (3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or compensation to the victim for the damage or infraction that was done to the latter by the accused, which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also ordered to pay the victim a sum of money as restitution. Clearly, this award of civil indemnity due to the death of the victim could not be contemplated as akin to the value of a thing that is unlawfully taken which is the basis in the imposition of the proper penalty in certain crimes. Thus, the reasoning in increasing the value of civil indemnity awarded in some offense cannot be the same reasoning that would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the law only imposes a minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did not provide for a ceiling. Thus, although the minimum amount for the award cannot be changed, increasing the amount awarded as civil indemnity can be validly modified and increased when the present circumstance warrants it. Corollarily, moral damages under Article 222039 of the Civil Code also does not fix the amount of damages that can be awarded. It is discretionary upon the court, depending on the mental anguish or the suffering of the private offended party. The amount of moral damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of civil indemnity. In addition, some may view the penalty provided by law for the offense committed as tantamount to cruel punishment. However, all penalties are generally harsh, being punitive in nature. Whether or not they are excessive or amount to cruel punishment is a matter that should be left to lawmakers. It is the prerogative of the courts to apply the law, especially when they are clear and not subject to any other interpretation than that which is plainly written. Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the incremental penalty provision should be declared unconstitutional and that the courts should only impose the penalty corresponding to the amount of ₱22,000.00, regardless if the actual amount involved exceeds ₱22,000.00. As suggested, however, from now until the law is properly amended by Congress, all crimes of Estafa will no longer be punished by the appropriate penalty. A conundrum in the regular course of criminal justice would occur when every accused convicted of the crime of estafa will be meted penalties different from the proper penalty that should be imposed. Such drastic twist in the application of the law has no legal basis and directly runs counter to what the law provides. It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by the Ramos Administration by virtue of Republic Act No. 7659 40 in December 1993. The said law has been questioned before this Court. There is, arguably, no punishment more cruel than that of death. Yet still, from the time the death penalty was re-imposed until its lifting in June 2006 by Republic Act No. 9346,41 the Court did not impede the imposition of the death penalty on the ground that it is a "cruel punishment" within the purview of Section 19 (1),42 Article III of the Constitution. Ultimately, it was through an act of Congress suspending the imposition of the death penalty that led to its non-imposition and not via the intervention of the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision of the law from which the proper penalty emanates unconstitutional in the present action. Not only is it violative of due process, considering that the State and the concerned parties were not given the opportunity to comment on the subject matter, it is settled that the constitutionality of a statute cannot be attacked collaterally because constitutionality issues must be pleaded directly and not collaterally,43 more so in the present controversy wherein the issues never touched upon the constitutionality of any of the provisions of the Revised Penal Code. Besides, it has long been held that the prohibition of cruel and unusual punishments is generally aimed at the form or character of the punishment rather than its severity in respect of duration or amount, and applies to punishments which public sentiment has regarded as cruel or obsolete, for instance, those inflicted at the whipping post, or in the pillory, burning at the stake, breaking on the wheel, disemboweling, and the like. Fine and imprisonment would not thus be within the prohibition.44 It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. The fact that the punishment authorized by the statute is severe does not make it cruel and unusual. Expressed in other terms, it has been held that to come under the ban, the punishment must be "flagrantly and plainly oppressive," "wholly disproportionate to the nature of the offense as to shock the moral sense of the community."45

Inflation ... PROFESSOR TADIAR: Yes. JUSTICE PERALTA: ... and so on. Is the Supreme Court equipped to determine those factors? PROFESSOR TADIAR: There are many ways by which the value of the Philippine Peso can be determined utilizing all of those economic terms. JUSTICE PERALTA: Yeah, but ... PROFESSOR TADIAR:

Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our modern time. The solution to the present controversy could not be solved by merely adjusting the questioned monetary values to the present value of money based only on the current inflation rate. There are other factors and variables that need to be taken into consideration, researched, and deliberated upon before the said values could be accurately and properly adjusted. The effects on the society, the injured party, the accused, its socio-economic impact, and the likes must be painstakingly evaluated and weighed upon in order to arrive at a wholistic change that all of us believe should be made to our existing law. Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient personnel to conduct public hearings and sponsor studies and surveys to validly effect these changes in our Revised Penal Code. This function clearly and appropriately belongs to Congress. Even Professor Tadiar concedes to this conclusion, to wit: xxxx JUSTICE PERALTA:

And I don’t think it is within the power of the Supreme Court to pass upon and peg the value to One Hundred (₱100.00) Pesos to ... JUSTICE PERALTA: Yeah. PROFESSOR TADIAR: ... One (₱1.00.00) Peso in 1930. JUSTICE PERALTA: That is legislative in nature. PROFESSOR TADIAR:

Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have to take into consideration several factors.

That is my position that the Supreme Court ...

PROFESSOR TADIAR:

JUSTICE PERALTA:

Yes.

Yeah, okay.

JUSTICE PERALTA:

PROFESSOR TADIAR:

Per capita income.

... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment that is a power that belongs to the legislature.

PROFESSOR TADIAR: JUSTICE PERALTA: Per capita income. JUSTICE PERALTA: Consumer price index.

Thank you, Professor. PROFESSOR TADIAR: Thank you.46

PROFESSOR TADIAR: Yeah. JUSTICE PERALTA:

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the role of the Court is not merely to dispense justice, but also the active duty to prevent injustice. Thus, in order to prevent injustice in the present controversy, the Court should not impose an obsolete penalty pegged eighty three years ago, but consider the proposed ratio of 1:100 as simply compensating for inflation.

Furthermore, the Court has in the past taken into consideration "changed conditions" or "significant changes in circumstances" in its decisions. Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the substance of a statute. The issue is no different from the Court’s adjustment of indemnity in crimes against persons, which the Court had previously adjusted in light of current times, like in the case of People v. Pantoja.47 Besides, Article 10 of the Civil Code mandates a presumption that the lawmaking body intended right and justice to prevail. With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues, all the proposals ultimately lead to prohibited judicial legislation. Short of being repetitious and as extensively discussed above, it is truly beyond the powers of the Court to legislate laws, such immense power belongs to Congress and the Court should refrain from crossing this clear-cut divide. With regard to civil indemnity, as elucidated before, this refers to civil liability which is awarded to the offended party as a kind of monetary restitution. It is truly based on the value of money. The same cannot be said on penalties because, as earlier stated, penalties are not only based on the value of money, but on several other factors. Further, since the law is silent as to the maximum amount that can be awarded and only pegged the minimum sum, increasing the amount granted as civil indemnity is not proscribed. Thus, it can be adjusted in light of current conditions. Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC. The RTC imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional in its medium period, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal in its minimum period, as maximum. However, the CA imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum, plus one (1) year for each additional ₱10,000.00, or a total of seven (7) years. In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People48 is highly instructive, thus:

Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00 ceiling set by law, then, adding one year for each additional ₱10,000.00, the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor minimum would be increased by 7 years. Taking the maximum of the prescribed penalty, which is 8 years, plus an additional 7 years, the maximum of the indeterminate penalty is 15 years. Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge against petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional in its minimum and medium periods. Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1 day to 4 years and 2 months. One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking. The Court should not pre-empt Congress and usurp its inherent powers of making and enacting laws. While it may be the most expeditious approach, a short cut by judicial fiat is a dangerous proposition, lest the Court dare trespass on prohibited judicial legislation. WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito Corpuz is hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated September 5, 2007 of the Court of Appeals, which affirmed with modification the Decision dated July 30, 2004 of the Regional Trial Court, Branch 46, San Fernando City, finding petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the penalty imposed is the indeterminate penalty of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal as maximum. Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the President of the Republic of the Philippines, through the Department of Justice.

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides: ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the House of Representatives. SO ORDERED.

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case, Article 65 of the same Code requires the division of the time included in the penalty into three equal portions of time included in the penalty prescribed, forming one period of each of the three portions. Applying the latter provisions, the maximum, medium and minimum periods of the penalty prescribed are: Maximum - 6 years, 8 months, 21 days to 8 years Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49 To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión mayor minimum should be divided into three equal portions of time each of which portion shall be deemed to form one period in accordance with Article 6550 of the RPC.51 In the present case, the amount involved is ₱98,000.00, which exceeds ₱22,000.00, thus, the maximum penalty imposable should be within the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor. Article 315 also states that a period of one year shall be added to the penalty for every additional ₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall the total penalty which may be imposed exceed 20 years.

DIOSDADO Associate Justice

M.

PERALTA

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-63419 December 18, 1986 FLORENTINA A. LOZANO, petitioner, vs. THE HONORABLE ANTONIO M. MARTINEZ, in his capacity as Presiding Judge, Regional Trial Court, National Capital Judicial Region, Branch XX, Manila, and the HONORABLE JOSE B. FLAMINIANO, in his capacity as City Fiscal of Manila, respondents. G.R. No. L-66839-42 December 18, 1986 LUZVIMINDA F. LOBATON petitioner, vs. HONORABLE GLICERIO L. CRUZ, in his capacity as Presiding Executive Judge, Branch V, Region IV, Regional Trial Court, sitting at Lemery, Batangas, THE PROVINCIAL FISCAL OF BATANGAS, and MARIA LUISA TORDECILLA, respondents. G.R No. 71654 December 18, 1986 ANTONIO DATUIN and SUSAN DATUIN, petitioners, vs. HONORABLE JUDGE ERNANI C. PANO, Regional Trial Court, Quezon City, Branch LXXXVIII, HONORABLE ClTY FISCAL OF QUEZON CITY, respondents. G.R. No. 74524-25 December 18, 1986 OSCAR VIOLAGO, petitioner, vs. HONORABLE JUDGE ERNANI C. PAÑ;O Regional Trial Court, Quezon City, Branch LXXXVIII, HONORABLE CITY FISCAL OF QUEZON CITY, respondents. G.R. No. 75122-49 December 18, 1986 ELINOR ABAD, petitioner, vs. THE HONORABLE NICOLAS A. GEROCHI, JR., in his capacity as Presiding Judge, Regional Trial Court, National Capital Judicial Region, Branch 139, Makati and FEDERICO L. MELOCOTTON JR., in his capacity as Trial Fiscal Regional Trial Court, Branch 139, Makati, respondents. G.R No. 75812-13 December 18, 1986 AMABLE R. AGUILUZ VII and SYLVIA V. AGUILUZ, spouses, petitioners, vs. HONORABLE PRESIDING JUDGE OF BRANCH 154, now vacant but temporarily presided by HONORABLE ASAALI S. ISNANI Branch 153, Court of First Instance of Pasig, Metro Manila, respondent. G.R No. 75765-67 December 18, 1986 LUIS M. HOJAS, petitioner, vs. HON. JUDGE SENEN PENARANDA, Presiding Judge, Regional Trial Court of Cagayan de Oro City, Branch XX, HONORABLE JUDGE ALFREDO LAGAMON, Presiding Judge, Regional Trial Court of Cagayan de Oro City, Branch XXII, HONORABLE CITY FISCAL NOLI T. CATHI, City Fiscal of Cagayan de Oro City, respondents. G.R. No. 75789 December 18, 1986 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial Court, National Capital Judicial Region, Branch 52, Manila and THELMA SARMIENTO, respondents. R.R. Nogales Law Office for petitioner in G.R. No. 63419, G.R. Nos. 74524-25, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel for respondent in G.R. No. 75789. Pio S. Canta for petitioner in G.R. Nos. 66839-42. Hermogenes Datuin, Jr. for petitioner in G.R. No. 71654. Abinoja, Tabalingcos, Villalon & Associates for petitioner in G.R. Nos. 75122-49. The Solicitor General for respondent in G.R. No. 63419, G.R. Nos. 66839-42, G.R. No. 71654, G.R. Nos. 7452425, G.R. Nos. 75122-49, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel for petitioner in G.R. No. 75789.

YAP, J.: The constitutionality of Batas Pambansa Bilang 22 (BP 22 for short), popularly known as the Bouncing Check Law, which was approved on April 3, 1979, is the sole issue presented by these petitions for decision. The question is definitely one of first impression in our jurisdiction. These petitions arose from cases involving prosecution of offenses under the statute. The defendants in those cases moved seasonably to quash the informations on the ground that the acts charged did not constitute an offense, the statute being unconstitutional. The motions were denied by the respondent trial courts, except in one case, which is the subject of G. R. No. 75789, wherein the trial court declared the law unconstitutional and dismissed the case. The parties adversely affected have come to us for relief. As a threshold issue the former Solicitor General in his comment on the petitions, maintained the posture that it was premature for the accused to elevate to this Court the orders denying their motions to quash, these orders being interlocutory. While this is correct as a general rule, we have in justifiable cases intervened to review the lower court's denial of a motion to quash. 1 In view of the importance of the issue involved here, there is no doubt in our mind that the instant petitions should be entertained and the constitutional challenge to BP 22 resolved promptly, one way or the other, in order to put to rest the doubts and uncertainty that exist in legal and judicial circles and the general public which have unnecessarily caused a delay in the disposition of cases involving the enforcement of the statute. For the purpose of resolving the constitutional issue presented here, we do not find it necessary to delve into the specifics of the informations involved in the cases which are the subject of the petitions before us. 2 The language of BP 22 is broad enough to

cover all kinds of checks, whether present dated or postdated, or whether issued in payment of pre-existing obligations or given in mutual or simultaneous exchange for something of value. I BP 22 punishes a person "who makes or draws and issues any check on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of said check in full upon presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment." The penalty prescribed for the offense is imprisonment of not less than 30 days nor more than one year or a fine or not less than the amount of the check nor more than double said amount, but in no case to exceed P200,000.00, or both such fine and imprisonment at the discretion of the court. 3 The statute likewise imposes the same penalty on "any person who, having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. 4 An essential element of the offense is "knowledge" on the part of the maker or drawer of the check of the insufficiency of his funds in or credit with the bank to cover the check upon its presentment. Since this involves a state of mind difficult to establish, the statute itself creates a prima facie presumption of such knowledge where payment of the check "is refused by the drawee because of insufficient funds in or credit with such bank when presented within ninety (90) days from the date of the check. 5 To mitigate the harshness of the law in its application, the statute provides that such presumption shall not arise if within five (5) banking days from receipt of the notice of dishonor, the maker or drawer makes arrangements for payment of the check by the bank or pays the holder the amount of the check. Another provision of the statute, also in the nature of a rule of evidence, provides that the introduction in evidence of the unpaid and dishonored check with the drawee bank's refusal to pay "stamped or written thereon or attached thereto, giving the reason therefor, "shall constitute prima facie proof of "the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof ... for the reason written, stamped or attached by the drawee on such dishonored check." 6 The presumptions being merely prima facie, it is open to the accused of course to present proof to the contrary to overcome the said presumptions. II BP 22 is aimed at putting a stop to or curbing the practice of issuing checks that are worthless, i.e. checks that end up being rejected or dishonored for payment. The practice, as discussed later, is proscribed by the state because of the injury it causes to t public interests. Before the enactment of BP 22, provisions already existed in our statute books which penalize the issuance of bouncing or rubber checks. Criminal law has dealth with the problem within the context of crimes against property punished as "estafa" or crimes involving fraud and deceit. The focus of these penal provisions is on the damage caused to the property rights of the victim. The Penal Code of Spain, which was in force in the Philippines from 1887 until it was replaced by the Revised Penal Code in 1932, contained provisions penalizing, among others, the act of defrauding another through false pretenses. Art. 335 punished a person who defrauded another "by falsely pretending to possess any power, influence, qualification, property, credit, agency or business, or by means of similar deceit." Although no explicit mention was made therein regarding checks, this provision was deemed to cover within its ambit the issuance of worthless or bogus checks in exchange for money. 7 In 1926, an amendment was introduced by the Philippine Legislature, which added a new clause (paragraph 10) to Article 335 of the old Penal Code, this time referring in explicit terms to the issuance of worthless checks. The amendment penalized any person who 1) issues a check in payment of a debt or for other valuable consideration,

knowing at the time of its issuance that he does not have sufficient funds in the bank to cover its amount, or 2) maliciously signs the check differently from his authentic signature as registered at the bank in order that the latter would refuse to honor it; or 3) issues a postdated check and, at the date set for its payment, does not have sufficient deposit to cover the same.8

enact a law dealing with the problem of bouncing or worthless checks, without attaching the law's umbilical cord to the existing penal provisions on estafa. BP 22 addresses the problem directly and frontally and makes the act of issuing a worthless check malum prohibitum. 14 The question now arises: Is B P 22 a valid law?

In 1932, as already adverted to, the old Penal Code was superseded by the Revised Penal Code. 9 The above provisions, in amended form, were incorporated in Article 315 of the Revised Penal Code defining the crime of estafa. The revised text of the provision read as follows: Art. 315. Swindling (estafa).—Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: xxx xxx xxx 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commis sion of the fraud: (a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits; xxx

xxx

xxx

(d) By postdating a check, or issuing a check in payment of an obligation the offender knowing that at the time he had no funds in the bank, or the funds deposited by him were not sufficient to cover the amount of the cheek without informing the payee of such circumstances.

Previous efforts to deal with the problem of bouncing checks within the ambit of the law on estafa did not evoke any constitutional challenge. In contrast, BP 22 was challenged promptly. Those who question the constitutionality of BP 22 insist that: (1) it offends the constitutional provision forbidding imprisonment for debt; (2) it impairs freedom of contract; (3) it contravenes the equal protection clause; (4) it unduly delegates legislative and executive powers; and (5) its enactment is flawed in that during its passage the Interim Batasan violated the constitutional provision prohibiting amendments to a bill on Third Reading. The constitutional challenge to BP 22 posed by petitioners deserves a searching and thorough scrutiny and the most deliberate consideration by the Court, involving as it does the exercise of what has been described as "the highest and most delicate function which belongs to the judicial department of the government." 15 As we enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the government, we need not be reminded of the time-honored principle, deeply ingrained in our jurisprudence, that a statute is presumed to be valid. Every presumption must be indulged in favor of its constitutionality. This is not to say that we approach our task with diffidence or timidity. Where it is clear that the legislature has overstepped the limits of its authority under the constitution we should not hesitate to wield the axe and let it fall heavily, as fall it must, on the offending statute. III

The scope of paragraph 2 (d), however, was deemed to exclude checks issued in payment of pre-existing obligations. 10 The rationale of this interpretation is that in estafa, the deceit causing the defraudation must be prior to or simultaneous with the commission of the fraud. In issuing a check as payment for a pre-existing debt, the drawer does not derive any material benefit in return or as consideration for its issuance. On the part of the payee, he had already parted with his money or property before the check is issued to him hence, he is not defrauded by means of any "prior" or "simultaneous" deceit perpetrated on him by the drawer of the check. With the intention of remedying the situation and solving the problem of how to bring checks issued in payment of pre-existing debts within the ambit of Art. 315, an amendment was introduced by the Congress of the Philippines in 1967, 11 which was enacted into law as Republic Act No. 4885, revising the aforesaid proviso to read as follows: (d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall be puma facie evidence of deceit constituting false pretense or fraudulent act. However, the adoption of the amendment did not alter the situation materially. A divided Court held in People vs. Sabio, Jr. 12 that Article 315, as amended by Republic Act 4885, does not cover checks issued in payment of pre-existing obligations, again relying on the concept underlying the crime of estafa through false pretenses or deceit—which is, that the deceit or false pretense must be prior to or simultaneous with the commission of the fraud. Since statistically it had been shown that the greater bulk of dishonored checks consisted of those issued in payment of pre-existing debts, 13 the amended provision evidently failed to cope with the real problem and to deal effectively with the evil that it was intended to eliminate or minimize. With the foregoing factual and legal antecedents as a backdrop, the then Interim Batasan confronted the problem squarely. It opted to take a bold step and decided to

Among the constitutional objections raised against BP 22, the most serious is the alleged conflict between the statute and the constitutional provision forbidding imprisonment for debt. It is contended that the statute runs counter to the inhibition in the Bill of Rights which states, "No person shall be imprisoned for debt or nonpayment of a poll tax." 16 Petitioners insist that, since the offense under BP 22 is consummated only upon the dishonor or non-payment of the check when it is presented to the drawee bank, the statute is really a "bad debt law" rather than a "bad check law." What it punishes is the non-payment of the check, not the act of issuing it. The statute, it is claimed, is nothing more than a veiled device to coerce payment of a debt under the threat of penal sanction. First of all it is essential to grasp the essence and scope of the constitutional inhibition invoked by petitioners. Viewed in its historical context, the constitutional prohibition against imprisonment for debt is a safeguard that evolved gradually during the early part of the nineteenth century in the various states of the American Union as a result of the people's revulsion at the cruel and inhumane practice, sanctioned by common law, which permitted creditors to cause the incarceration of debtors who could not pay their debts. At common law, money judgments arising from actions for the recovery of a debt or for damages from breach of a contract could be enforced against the person or body of the debtor by writ of capias ad satisfaciendum. By means of this writ, a debtor could be seized and imprisoned at the instance of the creditor until he makes the satisfaction awarded. As a consequence of the popular ground swell against such a barbarous practice, provisions forbidding imprisonment for debt came to be generally enshrined in the constitutions of various states of the Union. 17 This humanitarian provision was transported to our shores by the Americans at the turn of t0he century and embodied in our organic laws. 18 Later, our fundamental law outlawed not only imprisonment for debt, but also the infamous practice, native to our shore, of throwing people in jail for non-payment of the cedula or poll tax. 19 The reach and scope of this constitutional safeguard have been the subject of judicial definition, both by our Supreme Court 20 and by American State courts.21 Mr. Justice Malcolm speaking for the Supreme Court in Ganaway vs. Queen, 22 stated: "The 'debt' intended to be covered by the constitutional guaranty has a well-defined meaning. Organic provisions relieving from imprisonment for debt, were intended to prevent commitment of debtors to prison for liabilities arising from actions ex contractu The inhibition was never meant to include damages arising in actions ex delicto, for the reason that damages recoverable therein do not arise from any contract entered into

between the parties but are imposed upon the defendant for the wrong he has done and are considered as punishment, nor to fines and penalties imposed by the courts in criminal proceedings as punishments for crime." The law involved in Ganaway was not a criminal statute but the Code of Procedure in Civil Actions (1909) which authorized the arrest of the defendant in a civil case on grounds akin to those which justify the issuance of a writ of attachment under our present Rules of Court, such as imminent departure of the defendant from the Philippines with intent to defraud his creditors, or concealment, removal or disposition of properties in fraud of creditors, etc. The Court, in that case, declared the detention of the defendant unlawful, being violative of the constitutional inhibition against imprisonment for debt, and ordered his release. The Court, however, refrained from declaring the statutory provision in question unconstitutional. Closer to the case at bar is People v. Vera Reyes,23 wherein a statutory provision which made illegal and punishable the refusal of an employer to pay, when he can do so, the salaries of his employees or laborers on the fifteenth or last day of every month or on Saturday every week, was challenged for being violative of the constitutional prohibition against imprisonment for debt. The constitutionality of the law in question was upheld by the Court, it being within the authority of the legislature to enact such a law in the exercise of the police power. It was held that "one of the purposes of the law is to suppress possible abuses on the part of the employers who hire laborers or employees without paying them the salaries agreed upon for their services, thus causing them financial difficulties. "The law was viewed not as a measure to coerce payment of an obligation, although obviously such could be its effect, but to banish a practice considered harmful to public welfare. IV Has BP 22 transgressed the constitutional inhibition against imprisonment for debt? To answer the question, it is necessary to examine what the statute prohibits and punishes as an offense. Is it the failure of the maker of the check to pay a debt? Or is it the making and issuance of a worthless check in payment of a debt? What is the gravamen of the offense? This question lies at the heart of the issue before us. The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the act not as an offense against property, but an offense against public order. Admittedly, the distinction may seem at first blush to appear elusive and difficult to conceptualize. But precisely in the failure to perceive the vital distinction lies the error of those who challenge the validity of BP 22. It may be constitutionally impermissible for the legislature to penalize a person for non-payment of a debt ex contractu But certainly it is within the prerogative of the lawmaking body to proscribe certain acts deemed pernicious and inimical to public welfare. Acts mala in se are not the only acts which the law can punish. An act may not be considered by society as inherently wrong, hence, not malum in se but because of the harm that it inflicts on the community, it can be outlawed and criminally punished as malum prohibitum. The state can do this in the exercise of its police power. The police power of the state has been described as "the most essential, insistent and illimitable of powers" which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. 24 It is a power not emanating from or conferred by the constitution, but inherent in the state, plenary, "suitably vague and far from precisely defined, rooted in the conception that man in organizing the state and imposing upon the government limitations to safeguard constitutional rights did not intend thereby to enable individual citizens or group of citizens to obstruct unreasonably the enactment of such salutary measures to ensure communal peace, safety, good order and welfare." 25 The enactment of BP 22 is a declaration by the legislature that, as a matter of public policy, the making and issuance of a worthless check is deemed public nuisance to be abated by the imposition of penal sanctions. It is not for us to question the wisdom or impolicy of the statute. It is sufficient that a reasonable nexus exists between means and end. Considering the factual and legal

antecedents that led to the adoption of the statute, it is not difficult to understand the public concern which prompted its enactment. It had been reported that the approximate value of bouncing checks per day was close to 200 million pesos, and thereafter when overdrafts were banned by the Central Bank, it averaged between 50 minion to 80 million pesos a day. 26 By definition, a check is a bill of exchange drawn on a bank and payable on demand. 27 It is a written order on a bank, purporting to be drawn against a deposit of funds for the payment of all events, of a sum of money to a certain person therein named or to his order or to cash and payable on demand. 28 Unlike a promissory note, a check is not a mere undertaking to pay an amount of money. It is an order addressed to a bank and partakes of a representation that the drawer has funds on deposit against which the check is drawn, sufficient to ensure payment upon its presentation to the bank. There is therefore an element of certainty or assurance that the instrument wig be paid upon presentation. For this reason, checks have become widely accepted as a medium of payment in trade and commerce. Although not legal tender, checks have come to be perceived as convenient substitutes for currency in commercial and financial transactions. The basis or foundation of such perception is confidence. If such confidence is shakes the usefulness of checks as currency substitutes would be greatly diminished or may become nit Any practice therefore tending to destroy that confidence should be deterred for the proliferation of worthless checks can only create havoc in trade circles and the banking community. Recent statistics of the Central Bank show that one-third of the entire money supply of the country, roughly totalling P32.3 billion, consists of peso demand deposits; the remaining two. 29 These de deposit thirds consists of currency in circulation. ma deposits in the banks constitute the funds against which among others, commercial papers like checks, are drawn. The magnitude of the amount involved amply justifies the legitimate concern of the state in preserving the integrity of the banking system. Flooding the system with worthless checks is like pouring garbage into the bloodstream of the nation's economy. The effects of the issuance of a worthless check transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation, multiplied a thousand fold, can very wen pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest. As aptly stated — 30 The 'check flasher' does a great deal more than contract a debt; he shakes the pillars of business; and to my mind, it is a mistaken charity of judgment to place him in the same category with the honest man who is unable to pay his debts, and for whom the constitutional inhibition against' imprisonment for debt, except in cases of fraud was intended as a shield and not a sword. In sum, we find the enactment of BP 22 a valid exercise of the police power and is not repugnant to the constitutional inhibition against imprisonment for debt. This Court is not unaware of the conflicting jurisprudence obtaining in the various states of the United States on the constitutionality of the "worthless check" acts. 31 It is needless to warn that foreign jurisprudence must be taken with abundant caution. A caveat to be observed is that substantial differences exist between our statute and the worthless check acts of those states where the jurisprudence have evolved. One thing to remember is that BP 22 was not lifted bodily from any existing statute. Furthermore, we have to consider that judicial decisions must be read in the context of the facts and the law involved and, in a broader sense, of the social economic and political environment—in short, the milieu—under which they were made. We recognize the wisdom of the old saying that what is sauce for the goose may not be sauce for the gander. As stated elsewhere, police power is a dynamic force that enables the state to meet the exigencies of changing times. There are occasions when the police power of the state may even override a constitutional guaranty. For example, there have been cases wherein we held that the constitutional provision on non-impairment of contracts must yield to the police power of the state. 32 Whether the police power may override the constitutional inhibition against imprisonment for debt is an issue we do not have to address. This bridge has not been reached, so there is no occasion to cross it. We hold that BP 22 does not conflict with the constitutional inhibition against imprisonment for debt.

V We need not detain ourselves lengthily in the examination of the other constitutional objections raised by petitioners, some of which are rather flimsy. We find no valid ground to sustain the contention that BP 22 impairs freedom of contract. The freedom of contract which is constitutionally protected is freedom to enter into "lawful" contracts. Contracts which contravene public policy are not lawful. 33 Besides, we must bear in mind that checks can not be categorized as mere contracts. It is a commercial instrument which, in this modem day and age, has become a convenient substitute for money; it forms part of the banking system and therefore not entirely free from the regulatory power of the state. Neither do we find substance in the claim that the statute in question denies equal protection of the laws or is discriminatory, since it penalizes the drawer of the check, but not the payee. It is contended that the payee is just as responsible for the crime as the drawer of the check, since without the indispensable participation of the payee by his acceptance of the check there would be no crime. This argument is tantamount to saying that, to give equal protection, the law should punish both the swindler and the swindled. The petitioners' posture ignores the well-accepted meaning of the clause "equal protection of the laws." The clause does not preclude classification of individuals, who may be accorded different treatment under the law as long as the classification is no unreasonable or arbitrary. 34 It is also suggested that BP 22 constitutes undue or improper delegation of legislative powers, on the theory that the offense is not completed by the sole act of the maker or drawer but is made to depend on the will of the payee. If the payee does not present the check to the bank for payment but instead keeps it, there would be no crime. The logic of the argument stretches to absurdity the meaning of "delegation of legislative power." What cannot be delegated is the power to legislate, or the power to make laws. 35 which means, as applied to the present case, the power to define the offense sought to be punished and to prescribe the penalty. By no stretch of logic or imagination can it be said that the power to define the crime and prescribe the penalty therefor has been in any manner delegated to the payee. Neither is there any provision in the statute that can be construed, no matter how remotely, as undue delegation of executive power. The suggestion that the statute unlawfully delegates its enforcement to the offended party is farfetched. Lastly, the objection has been raised that Section 9 (2) of Article VII of the 1973 Constitution was violated by the legislative body when it enacted BP 22 into law. This constitutional provision prohibits the introduction of amendments to a bill during the Third Reading. It is claimed that during its Third Reading, the bill which eventually became BP 22 was amended in that the text of the second paragraph of Section 1 of the bill as adopted on Second Reading was altered or changed in the printed text of the bill submitted for approval on Third Reading. A careful review of the record of the proceedings of the Interim Batasan on this matter shows that, indeed, there was some confusion among Batasan Members on what was the exact text of the paragraph in question which the body approved on Second Reading. 36 Part of the confusion was due apparently to the fact that during the deliberations on Second Reading (the amendment period), amendments were proposed orally and approved by the body or accepted by the sponsor, hence, some members might not have gotten the complete text of the provisions of the bill as amended and approved on Second Reading. However, it is clear from the records that the text of the second paragraph of Section 1 of BP 22 is the text which was actually approved by the body on Second Reading on February 7, 1979, as reflected in the approved Minutes for that day. In any event, before the bin was submitted for final approval on Third Reading, the Interim Batasan created a Special Committee to investigate the matter, and the Committee in its report, which was approved by the entire body on March 22, 1979, stated that "the clause in question was ... an authorized amendment of the bill and the printed copy thereof reflects accurately the provision in question as approved on Second Reading. 37 We therefore, find no merit in the petitioners' claim that in the enactment of BP 22 the provisions of Section 9 (2) of Article VIII of the 1973 Constitution were violated. WHEREFORE, judgment is rendered granting the petition in G.R. No. 75789 and setting aside the order of the respondent Judge dated August 19, 1986. The petitions in G.R. Nos. 63419, 66839-42, 71654, 74524-25, 75122-49, 75812-13 and 75765-67 are hereby dismissed and the temporary restraining order issued in G.R. Nos. 74524-25 is lifted. With costs against private petitioners. SO ORDERED.

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

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-45129 March 6, 1987 PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the Court of First Instance of Batangas, Second Branch, and MANUEL OPULENCIA, respondents.

that the information was filed by the fiscal more than nine months after discovery of the offense charged in February 1975. Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed before the Court of First Instance of Batangas, Branch 11, another information against Manuel Opulencia, this time for theft of electric power under Article 308 in relation to Article 309, paragraph (1), of the Revised Penal Code. This information read as follows: The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the crime of theft, defined and penalized by Article 308, in relation to Article 309, paragraph (1) of the Revised Penal Code, committed as follows:

FELICIANO, J.: In this petition for certiorari and mandamus, the People of the Philippines seek to set aside the orders of the respondent Judge of the Court of First Instance of Batangas in Criminal Case No. 266, dated 12 August 1976 and 8 November 1976, respectively, quashing an information for theft filed against private respondent Manuel Opulencia on the ground of double jeopardy and denying the petitioner's motion for reconsideration. On 1 February 1975, members of the Batangas City Police together with personnel of the Batangas Electric Light System, equipped with a search warrant issued by a city judge of Batangas City, searched and examined the premises of the Opulencia Carpena Ice Plant and Cold Storage owned and operated by the private respondent Manuel Opulencia. The police discovered that electric wiring, devices and contraptions had been installed, without the necessary authority from the city government, and "architecturally concealed inside the walls of the building" 1owned by the private respondent. These electric devices and contraptions were, in the allegation of the petitioner "designed purposely to lower or decrease the readings of electric current consumption in the electric meter of the said electric [ice and cold storage] plant." 2 During the subsequent investigation, Manuel Opulencia admitted in a written statement that he had caused the installation of the electrical devices "in order to lower or decrease the readings of his electric meter. 3 On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of Batangas City an information against Manuel Opulencia for violation of Ordinance No. 1, Series of 1974, Batangas City. A violation of this ordinance was, under its terms, punishable by a fine "ranging from Five Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which shall not exceed thirty (30) days, or both, at the discretion of the court." 4 This information reads as follows:

That on, during, and between the month of November, 1974, and the 21st day of February, 1975, at Kumintang, lbaba, Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain and without the knowledge and consent of the Batangas Electric Light System, did then and there, wilfully, unlawfully and feloniously take, steal and appropriate electric current valued in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to the damage and prejudice of the said Batangas Electric Light System, owned and operated by the City Government of Batangas, in the aforementioned sum of P41,062.16. The above information was docketed as Criminal Case No. 266 before the Court of First Instance of Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia filed a Motion to Quash, dated 5 May 1976, alleging that he had been previously acquitted of the offense charged in the second information and that the filing thereof was violative of his constitutional right against double jeopardy. By Order dated 16 August 1976, the respondent Judge granted the accused's Motion to Quash and ordered the case dismissed. The gist of this Order is set forth in the following paragraphs: The only question here is whether the dismissal of the first case can be properly pleaded by the accused in the motion to quash.

That from November, 1974 to February, 1975 at Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud the City Government of Batangas, without proper authorization from any lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installations of electric wirings and devices to lower or decrease the consumption of electric fluid at the Opulencia Ice Plant situated at Kumintang, Ibaba, this city and as a result of such unathorized installations of electric wirings and devices made by the accused, the City Government of Batangas was damaged and prejudiced in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine currency, covering the period from November 1974 to February, 1975, to the damage and prejudice of the City Government of Batangas in the aforestated amount of P41,062.16, Philippine currency.

In the first paragraph of the earlier information, it alleges that the prosecution "accuses Manuel Opulencia y Lat of violation of Sec. 3(b) in relation to Sec. 6(d) and Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage to the City Government of Batangas, etc. " (Emphasis supplied). The first case, as it appears, was not simply one of illegal electrical connections. It also covered an amount of P41,062.16 which the accused, in effect, allegedly with intent to defraud, deprived the city government of Batangas. If the charge had meant illegal electric installations only, it could have alleged illegal connections which were done at one instance on a particular date between November, 1974, to February 21, 1975. But as the information states "that from November, 1974 to February 1975 at Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to defraud the City Government of Batangas, without proper authorization from any lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installations of electric wirings and devices, etc." (Emphasis supplied), it was meant to include the P 41,062.16 which the accused had, in effect, defrauded the city government. The information could not have meant that from November 1974 to 21 February 1975, he had daily committed unlawful installations.

The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February 1976, he filed a motion to dismiss the information upon the grounds that the crime there charged had already prescribed and that the civil indemnity there sought to be recovered was beyond the jurisdiction of the Batangas City Court to award. In an order dated 6 April 1976, the Batangas City Court granted the motion to dismiss on the ground of prescription, it appearing that the offense charged was a light felony which prescribes two months from the time of discovery thereof, and it appearing further

When, therefore, he was arraigned and he faced the indictment before the City Court, he had already been exposed, or he felt he was exposed to consequences of what allegedly happened between November 1974 to February 21, 1975 which had allegedly resulted in defrauding the City of Batangas in the amount of P 41,062.16. (Emphases and parentheses in the original)

The undersigned, Assistant City Fiscal, accuses Manuel Opulencia y Lat of violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II, Title IV of ordinance No. 1, S. 1974, with damage to the City Government of Batangas, and penalized by the said ordinance, committed as follows:

A Motion for Reconsideration of the above-quoted Order filed by the petitioner was denied by the respondent Judge in an Order dated 18 November 1976.

2. Fixing the electric meter in such a manner that it will not register the actual electrical consumption;

On 1 December 1976, the present Petition for certiorari and mandamus was filed in this Court by the Acting City Fiscal of Batangas City on behalf of the People.

3. Under-reading of electrical consumption; and

The basic premise of the petitioner's position is that the constitutional protection against double jeopardy is protection against a second or later jeopardy of conviction for the same offense. The petitioner stresses that the first information filed before the City Court of Batangas City was one for unlawful or unauthorized installation of electrical wiring and devices, acts which were in violation of an ordinance of the City Government of Batangas. Only two elements are needed to constitute an offense under this City Ordinance: (1) that there was such an installation; and (2) no authority therefor had been obtained from the Superintendent of the Batangas City Electrical System or the District Engineer. The petitioner urges that the relevant terms of the City Ordinance — which read as follows:

4. By tightening the screw of the rotary blade to slow down the rotation of the same. 7 The petitioner concludes that: The unauthorized installation punished by the ordinance [of Batangas City] is not the same as theft of electricity [under the Revised Penal Code]; that the second offense is not an attempt to commit the first or a frustration thereof and that the second offense is not necessarily included in the offense charged in the first inforrnation 8

Section 3.-Connection and Installation (a) x x x (b) The work and installation in the houses and building and their connection with the Electrical System shall be done either by the employee of the system duly authorized by its Superintendent or by persons adept in the matter duly authorized by the District Engineer. Applicants for electrical service permitting the works of installation or connection with the system to be undertaken by the persons not duly authorized therefor shall be considered guilty of violation of the ordinance. would show that: The principal purpose for (sic) such a provision is to ensure that electrical installations on residences or buildings be done by persons duly authorized or adept in the matter, to avoid fires and accidents due to faulty electrical wirings. It is primarily a regulatory measure and not intended to punish or curb theft of electric fluid which is already covered by the Revised Penal Code. 5 The gist of the offense under the City Ordinance, the petitioner's argument continues, is the installing of electric wiring and devices without authority from the proper officials of the city government. To constitute an offense under the city ordinance, it is not essential to establish any mens rea on the part of the offender generally speaking, nor, more specifically, an intent to appropriate and steal electric fluid. In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised Penal Code filed before the Court of First Instance of Batangas in Criminal Case No. 266 has quite different essential elements. These elements are: 1. That personal property be taken; 2. That the personal property (taken) belongs to another; 3. That the taking be done with intent of gain; 4. That the taking be done without the consent of the owner; and 5. That the taking be accomplished without violence against or intimidation of persons or force upon things. 6 The petitioner also alleges, correctly, in our view, that theft of electricity can be effected even without illegal or unauthorized installations of any kind by, for instance, any of the following means: 1. Turning back the dials of the electric meter;

The above arguments made by the petitioner are of course correct. This is clear both from the express terms of the constitutional provision involved — which reads as follows: No person shall be twice put in jeopardy of punishment for the same offense. 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. (Emphasis supplied; Article IV (22), 1973 Constitution) 9 and from our case law on this point. 10 The basic difficulty with the petitioner's position is that it must be examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but rather under the second sentence of the same section. The first sentence of Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second offenses may be based upon the same act or set of acts. The second sentence of Article IV (22) embodies an exception to the general proposition: the constitutional protection, against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts. This was made clear sometime ago in Yap vs. Lutero. 11 In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Court of Iloilo City, with violation of Article 14 of Ordinance No. 22, Series of 1951, in relation to Ordinance No. 15, Series of 1954, of the City of Iloilo. The information charged him with having "wilfully, unlawfully and feloniously drive[n] and operate[d]" an automobile — "recklessly and without reasonable caution thereby endangering other vehicles and pedestrians passing in said street." Three months later, Yap was again charged in Criminal Case No. 16443 of the same Municipal Court, this time with serious physical injuries through reckless imprudence. The information charged him with violation of the Revised Motor Vehicle Law (Act No. 3992 as amended by Republic Act No. 587) committed by driving and operating an automobile in a reckless and negligent manner and as a result thereof inflicting injuries upon an unfortunate pedestrian. Yap moved to quash the second information upon the ground that it placed him twice in jeopardy of punishment for the same act. This motion was denied by the respondent municipal judge. Meantime, another municipal judge had acquitted Yap in Criminal Case No. 16054. Yap then instituted a petition for certiorari in the Court of First Instance of Iloilo to set aside the order of the respondent municipal judge. The Court of First Instance of Iloilo having reversed the respondent municipal judge and having directed him to desist from continuing with Criminal Case No. 16443, the respondent Judge brought the case to the Supreme Court for review on appeal. In affirming the decision appealed from and holding that the constitutional protection against double jeopardy was available to petitioner Yap, then Associate Justice and later Chief Justice Roberto Concepcion wrote: To begin with, the crime of damage to property through reckless driving — with which Diaz stood charged in the court of first instance — is a violation of the Revised Penal Code (third paragraph of Article 365), not the Automobile Law (Act No. 3992, as amended by Republic Act No. 587). Hence, Diaz was not twice accused of a violation of the same law. Secondly, reckless driving and certain crimes committed through reckless driving are punishable under different provisions of said

Automobile Law. Hence — from the view point of Criminal Law, as distinguished from political or Constitutional Law — they constitute, strictly, different offenses, although under certain conditions, one offense may include the other, and, accordingly, once placed in jeopardy for one, the plea of double jeopardy may be in order as regards the other, as in the Diaz case. (Emphases in the original) Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the same offense." (Emphasis in the original) The second sentence of said clause provides that "if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense, whereas the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act provided that he is charged with different offenses, or the offense charged in one case is not included in or does not include, the crime charged in the other case. The second sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of a statute. If the two charges are based on one and the same act conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. 12 Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the same offense. So long as jeopardy has attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either case. The issue in the case at bar hinges, therefore, on whether or not, under the information in case No. 16443, petitioner could — if he failed to plead double jeopardy — be convicted of the same act charged in case No. 16054, in which he has already been acquitted. The information in case No. 16054 alleges, substantially, that on the date and in the place therein stated, petitioner herein had wilfully, unlawfully and feloniously driven and operated "recklessly and without reasonable caution" an automobile described in said information. Upon the other hand, the information in case No. 16443, similarly states that, on the same date and in the same place, petitioner drove and operated the aforementioned automobile in a "reckless and negligent manner at an excessive rate of speed and in violation of the Revised Motor Vehicle Law (Act No. 3992), as amended by Republic Act No. 587, and existing city ordinances." Thus, if the theories mentioned in the second information were not established by the evidence, petitioner could be convicted in case No. 16443 of the very same violation of municipal ordinance charged in case No. 16054, unless he pleaded double jeopardy. It is clear, therefore, that the lower court has not erred eventually sustaining the theory of petitioner herein. Put a little differently, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charge: the constitutional protection against double jeopardy is available only where an Identity is shown to exist between the earlier and the subsequent offenses charged. In contrast, where one offense is charged under a municipal ordinance while the other is penalized by a statute, the critical inquiry is to the identity of the acts which the accused is said to have committed and which are alleged to have given rise to the two offenses: the constitutional protection against double jeopardy is available so long as the acts which constitute or have given rise to the first offense under a municipal ordinance are the same acts which constitute or have given rise to the offense charged under a statute. The question may be raised why one rule should exist where two offenses under two different sections of the same statute or under different statutes are charged, and another rule for the situation where one offense is charged under a municipal

ordinance and another offense under a national statute. If the second sentence of the double jeopardy provision had not been written into the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same act under a national statute. An offense penalized by municipal ordinance is, by definition, different from an offense under a statute. The two offenses would never constitute the same offense having been promulgated by different rule-making authorities — though one be subordinate to the other — and the plea of double jeopardy would never lie. The discussions during the 1934-1935 Constitutional Convention show that the second sentence was inserted precisely for the purpose of extending the constitutional protection against double jeopardy to a situation which would not otherwise be covered by the first sentence. 13 The question of Identity or lack of Identity of offenses is addressed by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved. The question of Identity of the acts which are claimed to have generated liability both under a municipal ordinance and a national statute must be addressed, in the first instance, by examining the location of such acts in time and space. When the acts of the accused as set out in the two informations are so related to each other in time and space as to be reasonably regarded as having taken place on the same occasion and where those acts have been moved by one and the same, or a continuing, intent or voluntary design or negligence, such acts may be appropriately characterized as an integral whole capable of giving rise to penal liability simultaneously under different legal enactments (a municipal ordinance and a national statute). In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and serious physical injuries through reckless imprudence under the Revised Motor Vehicle Law as derived from the same act or sets of acts — that is, the operation of an automobile in a reckless manner. The additional technical element of serious physical injuries related to the physical consequences of the operation of the automobile by the accused, i.e., the impact of the automobile upon the body of the offended party. Clearly, such consequence occurred in the same occasion that the accused operated the automobile (recklessly). The moral element of negligence permeated the acts of the accused throughout that occasion. In the instant case, the relevant acts took place within the same time frame: from November 1974 to February 1975. During this period, the accused Manuel Opulencia installed or permitted the installation of electrical wiring and devices in his ice plant without obtaining the necessary permit or authorization from the municipal authorities. The accused conceded that he effected or permitted such unauthorized installation for the very purpose of reducing electric power bill. This corrupt intent was thus present from the very moment that such unauthorized installation began. The immediate physical effect of the unauthorized installation was the inward flow of electric current into Opulencia's ice plant without the corresponding recording thereof in his electric meter. In other words, the "taking" of electric current was integral with the unauthorized installation of electric wiring and devices. It is perhaps important to note that the rule limiting the constitutional protection against double jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute literalness. The Identity of offenses that must be shown need not be absolute Identity: the first and second offenses may be regarded as the "same offense" where the second offense necessarily includes the first offense or is necessarily included in such first offense or where the second offense is an attempt to commit the first or a frustration thereof. 14 Thus, for the constitutional plea of double jeopardy to be available, not all the technical elements constituting the first offense need be present in the technical definition of the second offense. The law here seeks to prevent harrassment of an accused person by multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements. As Associate Justice and later Chief Justice Ricardo Paras cautioned in People vs. del Carmen et al., 88 Phil. 51 (1951): While the rule against double jeopardy prohibits prosecution for the same offense, it seems elementary that an accused should be shielded against being prosecuted for several offenses made out from a single act. Otherwise, an unlawful act or omission may give use to several prosecutions depending upon the ability of the prosecuting officer to imagine or concoct as many offenses as can be justified by said act or omission, by simply adding or subtracting essential elements. Under the theory of appellant, the crime of rape may be converted into a crime of coercion, by merely alleging that by force and intimidation the accused prevented the offended girl from remaining a virgin. (88 Phil. at 53; emphases supplied)

By the same token, acts of a person which physically occur on the same occasion and are infused by a common intent or design or negligence and therefore form a moral unity, should not be segmented and sliced, as it were, to produce as many different acts as there are offenses under municipal ordinances or statutes that an enterprising prosecutor can find It remains to point out that the dismissal by the Batangas City Court of the information for violation of the Batangas City Ordinance upon the ground that such offense had already prescribed, amounts to an acquittal of the accused of that offense. Under Article 89 of the Revised Penal Code, "prescription of the crime" is one of the grounds for "total extinction of criminal liability." Under the Rules of Court, an order sustaining a motion to quash based on prescription is a bar to another prosecution for the same offense. 15 It is not without reluctance that we deny the people's petition for certiorari and mandamus in this case. It is difficult to summon any empathy for a businessman who would make or enlarge his profit by stealing from the community. Manuel Opulencia is able to escape criminal punishment because an Assistant City Fiscal by inadvertence or otherwise chose to file an information for an offense which he should have known had already prescribed. We are, however, compelled by the fundamental law to hold the protection of the right against double jeopardy available even to the private respondent in this case. The civil liability aspects of this case are another matter. Because no reservation of the right to file a separate civil action was made by the Batangas City electric light system, the civil action for recovery of civil liability arising from the offense charged was impliedly instituted with the criminal action both before the City Court of Batangas City and the Court of First Instance of Batangas. The extinction of criminal liability whether by prescription or by the bar of double jeopardy does not carry with it the extinction of civil liability arising from the offense charged. In the present case, as we noted earlier, 16 accused Manuel Opulencia freely admitted during the police investigation having stolen electric current through the installation and use of unauthorized elibctrical connections or devices. While the accused pleaded not guilty before the City Court of Batangas City, he did not deny having appropriated electric power. However, there is no evidence in the record as to the amount or value of the electric power appropriated by Manuel Opulencia, the criminal informations having been dismissed both by the City Court and by the Court of First Instance (from which dismissals the Batangas City electric light system could not have appealed 17) before trial could begin. Accordingly, the related civil action which has not been waived expressly or impliedly, should be remanded to the Court of First Instance of Batangas City for reception of evidence on the amount or value of the electric power appropriated and converted by Manuel Opulencia and rendition of judgment conformably with such evidence. WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for related civil liability be remanded to the Court of First Instance of Batangas City for further proceedings as indicated above. No pronouncement as to costs. SO ORDERED. Yap (Chairman), Narvasa, Melencio-Herrera, Gancayco and Sarmiento, JJ., concur. Cruz, J., took no part.

THIRD DIVISION G.R. No. 98431 January 15, 2002 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSUE DELA TORRE, accused-appellant. SANDOVAL-GUTIERREZ, J.: Appeal from the Decision1 dated January 28, 1991 of the Regional Trial Court (Branch 79), Morong, Rizal, in Criminal Case No. 0656, finding Josue B. Dela Torre guilty of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua, and to pay the costs. The Information2 against accused Josue Dela Torre reads: "That on or about the 5th day of November, 1989 in the Municipality of Teresa, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the said accused, by means of violence and intimidation, did then and there willfully, unlawfully, and feloniously have carnal knowledge of the complainant MARITA CORDOVA against her will. "Contrary to law with the aggravating circumstance of the crime having been committed in the house of said offended party who did not give any provocation for the offense." Upon being arraigned, the accused pleaded "not guilty."3 Thereafter, trial ensued. In support of its case, the prosecution presented three witnesses: Marita Cordova, the victim; Melanie Cordova, the victim's 10 year-old daughter; and Anthony Inocencio, a barriomate of the victim. The records show that sometime in September, 1989, Marita Cordova, 35 years old and married to Paulino Cordova, was employed as a cook at the La Fiesta Farm owned by Mr. Arturo Alindada, located in Pantay, a barrio in the Municipality of Teresa, Rizal.4 Her husband and accused Josue dela Torre were also workers of the same farm. Anthony Inocencio5 testified that around 7:00 to 8:00 P.M. of November 5, 1989, Paulino Cordova went to see him at his farm, also located in Barrio Pantay, Teresa, Rizal, near the La Fiesta Farm. Paulino asked for his assistance because the accused, then armed with a knife and bolo, was causing trouble and commotion at the La Fiesta Farm of Mr. Alindada. Anthony responded to Paulino's call for help. Upon arriving at the La Fiesta Farm, he learned that the accused forcibly took the shoes and money of Mr. Alindada's workers. Marita and her children asked Anthony whether they could stay in his farm. He obliged and they all proceeded there. Upon reaching the farm, Marita told Anthony that she was raped by the accused that night. Thereupon, he immediately fetched policemen from Teresa, Rizal and accompanied them to the La Fiesta Farm where the accused was accosted.6 As to how the rape was committed, Marita, the principal witness for the prosecution, recounted her harrowing experience at the hands of the accused. She testified that around 8:00 o'clock in the evening of November 5, 1989, she was cooking at the kitchen of the La Fiesta Farm. She was with her five (5) children then, namely: Merly, 13 years old; Melanie, 10; Lyndon, 7; Fullimer, 4; and Johnny Boy, 1. 7 Suddenly, the accused, holding a knife and a bolo, appeared in the kitchen8 and dragged her outside and brought her towards a house under construction about 200 meters away.990 Marita's children tried to follow but they desisted when the accused threatened (tinakot) them.10So they just stayed at the kitchen.11 While going to the said house, Marita and the accused met Joel Villasis and Johnny Dizon, also workers in the farm. They saw the accused poking a knife and a bolo at her. 12 Marita asked for their help but they did nothing because they were afraid of the accused.13 Once inside the house, the accused pushed Marita to the floor, stoop down in front of her, poked the knife at her throat and pinned her arms at her back.14 He then raised her dress above her breast.15 Thereupon, he pulled down his pants, took off her panty and placed himself on top of her.16 Still holding the knife, he pointed it at Marita's throat and placed the bolo on the ground.17 Afterwards, he spread her legs, kissed her lips down to her neck and sucked her breast.18 He then inserted his penis into her vagina and made push and pull movements for about eight (8) minutes19 and continued kissing her on the lips.20 While he was raping her, she was unable to resist because the knife was pointed at her throat and her arms pinned at her back.21 Thereafter, he stood and threatened her not to tell anybody about the incident as he would slash her neck.22

That very night Marita found courage to inform Anthony Inocencio, and later her employer, Mr. Alindada, and her husband of the sexual assault against her by the accused.23 Melanie Cordova corroborated the testimony of her mother. She and her siblings were in the kitchen of the La Fiesta Farm that night when the accused dragged their mother towards the house under construction (sa bahay na ginagawa). At a distance of two to three meters, she saw the accused pointing a knife at her mother's throat and a bolo at her back. They tried to follow them but the accused got angry. Thus, they remained at the kitchen where they all cried because of fear.24 The following day, November 6, 1989, Dr. Emmanuel Aranas, a Medico-Legal Officer at Camp Crame, Quezon City, conducted a physical examination on Marita. Dr. Aranas' Medico-Legal Report25 discloses the following findings: "GENERAL AND EXTRAGENITAL Fairly developed, fairly nourished and coherent female subject. Breast are pendulous with dark brown areola and nipples from which no secretion can be pressed out. Abdomen is flat and lax with striae of pregnancy. The following injuries are noted at the upper and lower extremities: (1) Abrasion, proximal phalange of the right index finger, measuring 0.3 x 0.2 cm.; (2) Abrasion, distal phalange of the right index finger, measuring 0.5 x 0.1 cm.; (3) Abrasion, middle 3rd of the right leg, measuring 7 x 4 cm., along its anterior midline. CONCLUSION Subject is in non-virgin state physically. Barring unforseen complications, it is estimated that the above injuries will resolve in 5 to 6 days. REMARKS Vaginal and peri-urethral smears are negative for gram-negative diplococci but positive for spermatozoa." Upon the other hand, the evidence for the defense is based solely on the testimony of accused Josue Dela Torre. He never denied having sexual contact with Marita that night of November 5, 1989. He claimed, however, that she was his mistress and that the carnal incident between them was consensual. Their relationship started on June 15, 1987 in Bacolod City, Negros Occidental when he and Paulino (Marita's husband) had a drinking spree in the house of a certain Cordova. At around 7:30 in the evening, Paulino got drunk and fell asleep. Thereupon, he courted Marita, who then told him that she would be willing to be his mistress if he would give her permanent support. At 3:00 in the morning of the following day, they engaged in sexual activity.26 Since then, their sexual affair became frequent until September, 1989 when Marita was recruited to work at La Fiesta Farm in Teresa, Rizal owned by Mr. Arturo Alindada. It was only in October, 1989 when he again met her at the La Fiesta Farm upon his employment there.27 Accused further narrated that at about 1:00 in the afternoon of November 5, 1989, he and Marita talked at the kitchen of La Fiesta Farm. They agreed to meet about 8:00 in the evening in the nearby house under construction. He arrived first at the place and, shortly thereafter, she followed. There, they had sexual intercourse on the ground using "sawali" as mat.28 On January 28, 1991, the trial court rendered a Decision,29 the dispositive portion of which reads: "WHEREFORE, this Court finds the accused JOSUE DELA TORRE GUILTY of the crime of RAPE under Article 335 of the Revised Penal Code, as

amended, and hereby sentences him to suffer the penalty of reclusion perpetua and to pay the costs. "SO ORDERED." In the instant appeal, appellant ascribes to the trial court this lone assignment of error: "THE REGIONAL TRIAL COURT IN MORONG, RIZAL (BRANCH 79) ERRED IN FINDING ACCUSSED-APPELLANT JOSUE DELA TORRE GUILTY OF THE CRIME OF RAPE BEYOND REASONABLE DOUBT."30 Appellant's defense is that what transpired between him and Marita Cordova on November 5, 1989 was consensual, she being his mistress at the time. After a thorough and careful review of the evidence adduced by the parties, this Court finds the appeal bereft of merit. The incident immediately prior to the rape was described by the trial court in its appealed decision as a "reign of terror … that pervaded in the La Fiesta Farm" in Barrio Pantay caused by the appellant who was running wild wielding a knife and bolo. 31 This created an atmosphere of great fear among those who witnessed the incident. The records do not disclose why the appellant acted that way. Understandably, every one seemed helpless. The assistance of the police authorities at that very moment could not readily be secured apparently because the police station is far, being located in the Municipality of Teresa. The incident happened so fast that it enabled the appellant to perpetrate the unfortunate crime against Marita.1âwphi1.nêt In a candid, straightforward and categorical manner, Marita disclosed the horrifying ordeal she endured from appellant's bestiality, completely belying the existence of consent on her part, thus: "x x x Q On or about 8:00 o'clock in the evening of November 5, 1989, Mrs. witness, do you remember having met or seen the accused Josue dela Torre? A Yes, sir. Q Could you please tell the Honorable Court what incident that happened, Mrs. Witness? A It happened at the kitchen. He pushed me to the house under construction (owned) by our boss (amo). Q Who was this person who pushed you, Mrs. Witness? A Josue dela Torre, sir. Q And after Josue dela Torre pushed you, what happened next? A He pointed a knife at my throat and a bolo pointed (nakatutok) at my back. x x x Q Now, Mrs. Witness, what happened next after the accused pointed a knife at your throat and a bolo at your back? A He pushed me inside the house on the ground. Q What happened next after he pushed you on the ground. A With the knife on my throat and my two (2) hands at the back with the bolo, he undressed me. Q What kind of dress are you wearing, Mrs. Witness, at that time? A I was wearing a dress (bestida). Q When you said that the accused undressed you, what exactly do you mean? A He lifted my dress up to a little bit above my breast. Q Mrs. Witness, other than your bestida, what was you wearing at that time? A I had only a panty. Q What about bra? A None, sir. Q What happened to your panty if any at the time the accused lifted your dress? A He took off my panty. Q Did the accused succeed removing your panty at the time, Mrs. Witness? A Yes, sir. Q Now, Mrs. Witness, after the accused raised your dress above your dress and after successfully removing your panty, what happened next? A He sucked my breast, he inserted his penis inside my private part (puke).

Q Now, Mrs. Witness, could you please tell us what position you assumed in time the accused inserted his penis in your private part? A I was lying on the ground with my back face up. Q And what about the accused? A He was on top of me. Q And how long was the penis of the accused inserted at your private part? A About ten (10) minutes. Q Did the accused make any movement? A He was kissing me and his body was moving up and down. Q Did you actually feel the penis in your private part? A Yes, sir. Q And you said that Josue dela Torre was on top of you and his penis, after ten minutes, what happened next? A After he took advantage, he threatened to cut my neck for me not to tell authorities what happened to me."32 Melanie, the victim's 10-year old daughter, witnessed how appellant dragged her mother to the nearby house where the crime was consummated. She testified as follows: "FISCAL TOBIA Q Melanie, do you know the accused Josue dela Torre? A Yes, sir. Q Melanie, your mother previously testified that on November 5, 1989 you saw her being dragged by the accused Josue dela Torre at the premises of the La Fiesta Farm, what can you say to this? A Yes, sir. Q How did it come about that you saw her being dragged by Josue dela Torre on said date, Melanie? A I was in the kitchen. Q And do you mean to say that it was from the kitchen that the accused dela Torre dragged your mother? A Yes, sir. Q And could you please tell the Honorable Court how Josue dela Torre dragged your mother away from the kitchen? A I saw Josue pointing a knife at my mother's throat and a bolo at my mother's back. x x x Q Did you actually see your mother being brought to that house under construction by Josue dela Torre? A Yes, sir. Q And on the time Josue dela Torre was still pointing a knife at the throat of your mother and a bolo at her back? A Yes, sir. Q When you saw your mother being dragged by Josue dela Torre pointing a knife and a bolo at her, what did you do? A I cried. Q Why did you cry? A We have nothing to do but to cry, I was afraid."33 All the while when appellant was sexually gratifying himself, that same knife was still poked at Marita's throat. This was clearly pointed out by Marita herself: "x x x Q While he was stooping in front of you, pulling down his pants, Josue dela Torre is no longer holding knife or bolo? A He was still holding the knife while the bolo was in the ground near him. x x x Q And while your legs were widely open and while you are being kissed by Josue dela Torre that was the time he inserted his penis inside your genital organ? A Yes, sir. Inside my private part. Q And at that very moment you were no longer aware whether Josue dela Torre was holding a knife or not? A I still knew he was still holding a knife. Q How did you know that he was still holding a knife at that very moment wherein your legs were widely open and his penis was inside your genital organ? A He was pointing his knife at my throat."34 Evidently, Marita was cowed to submit to appellant's sexual assault through force and intimidation. Appellant was brandishing a knife and a bolo when he dragged her to a nearby house being constructed. Even while appellant was raping her, he was holding the knife pointed at her throat. After the sexual aggression, he further threatened to cut off Marita's neck if she would tell the authorities what happened. The act of holding a knife/bolo, a deadly weapon,35 by itself strongly suggests force, or

intimidation, and when the same is used to threaten a woman to ensure carnal knowledge of her, rape is certainly committed.36 Appellant's "sweetheart theory" is totally unavailing. Marita is a married woman with five children in her care. To embroil her into such kind of amorous relationship, strong and convincing evidence is necessary to prove the same. This Court, in several rape cases,37 has not hesitated to sustain the defense of consensual sex. However, in those cases, evidence like love notes, mementos and witnesses attesting to a consensual relationship were presented. Here, other than his bare allegation, appellant failed to present any evidence to substantiate the existence of such illicit affair. Indeed, appellant's tale of romance is a desperate attempt to justify his claim that Marita consented to his sexual desire on November 5, 1989.1âwphi1.nêt Even assuming that an illicit affair existed between them, the categorical and spontaneous manner by which Marita and Melanie narrated appellant's dastardly act is more than enough reason to belie his claim of consensual sex on that fateful night of November 5, 1989. In fact, this is substantially corroborated by the Medico-Legal Report of Dr. Aranas showing that Marita sustained abrasions from her leg and finger, which injuries could take five to six days to heal. Of utmost significance, too, is the absence of ill-motive on the part of any prosecution witness, much less on the part of the victim herself, to prevaricate, nay concoct, such a shocking story of defloration. It is the settled rule that where there is nothing to indicate that a witness was actuated by improper motives, his/her positive and categorical declarations on the witness stand, made under solemn oath, should be given full faith and credence.38 Between the positive and categorical statements of prosecution witnesses, on one hand, and the bare denial of appellant, on the other, the former must prevail.39 Affirmative testimony, when it proceeds from the mouth of a credible witness, as in this case, is far stronger40 and more trustworthy41 than a negative testimony.42 At any rate, it is highly inconceivable that Marita, a mother of five (5) children, would falsely charge appellant with such a serious crime as rape if it were not the plain truth. It is worthy to note that after the sexual assault, she wasted no time relating her gruesome experience to her husband who, unfortunately, was afraid of the appellant and left prior thereto to seek assistance from Anthony Inocencio.43 Without vacillation, she submitted herself for medical and genital examination the following day. Faced with possible public humiliation, scandal and ridicule, she mustered the courage to expose her own and her family's honor to the rigors of court trial. These indignities and ignominies which Marita withstood overwhelmingly show her sincerity in vindicating the outrage to her honor and chastity. This Court is thus convinced that appellant's guilt has been established by the prosecution beyond inditia of doubt. His conviction must be sustained. The Information alleges the presence of the aggravating circumstance of dwelling in the commission of the offense. This should have been appreciated by the court a quo. It appears from the records that the kitchen at the La Fiesta Farm where Marita was dragged by appellant is her "dwelling," albeit the same does not belong to her. In People v. Parazo,44 this Court stressed that the "dwelling" contemplated in Article 14(3) of the Revised Penal Code does not necessarily mean that the victim owns the place where he lives or dwells. Be he a lessee, a boarder, or a bedspacer, the place is his home, the sanctity of which the law seeks to protect. The fact that the crime was consummated in the nearby house is also immaterial. Marita was forcibly taken by appellant from her dwelling house (kitchen) and then raped her. Dwelling is aggravating if the victim was taken from his house although the offense was not completed therein.45 Nonetheless, the trial court's imposition of the penalty of reclusion perpetua is in accordance with law and jurisprudence. At that time, the penalty for rape under Article 335 of the Revised Penal Code,46 when committed with the use of a deadly weapon, such as the knife,47 is reclusion perpetua to death, a penalty composed of two indivisible penalties. Article 63, supra, provides, inter alia: "x

x

x

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rule shall be observed: 1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied.

x

x

x" (Emphasis supplied)

The presence of the generic aggravating circumstance of dwelling, with no mitigating circumstance to offset the same, would have warranted the imposition of the death penalty were it not for the fact that such penalty was then constitutionally suspended.48 Thus, the penalty of reclusion perpetua imposed by the trial court is proper.1âwphi1.nêt Now to the civil aspect of the crime. The court a quo erred in not holding appellant civilly liable. In line with the current jurisprudence,49 a civil indemnity in the amount of ₱50,000.00 should be awarded to the victim. Also, she is entitled to moral damages, now fixed at ₱50,000.00.50 Furthermore, because of the use of a deadly weapon in the commission of the crime, as well as the presence of the aggravating circumstance of dwelling, both of which indicate the criminal perversity of the appellant, the amount of ₱25,000.00 by way of exemplary damages is justified. It is now well-settled that in criminal cases, the presence of an aggravating circumstance, whether ordinary or qualifying, entitles the victim to an award of exemplary damages insofar as the civil aspect of the crime is concerned.51 WHEREFORE, the appealed decision convicting JOSUE DELA TORRE of the crime of RAPE and sentencing him to suffer the penalty of RECLUSION PERPETUA is AFFIRMED. Insofar as the civil aspect of the crime is concerned, the appealed decision is MODIFIED. Appellant is thus ordered to pay the victim, Marita Cordova, ₱50,000.00 as civil indemnity; ₱50,000.00 as moral damages; and ₱25,000.00 as exemplary damages. Costs against the appellant. SO ORDERED. Melo, Vitug, Panganiban, and Carpio, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-32485 October 22, 1970 IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE PETITIONER'S RIGHTS AND DUTIES UNDER SEC. 8 OF R.A. No. 6132. KAY VILLEGAS KAMI, INC., petitioner.

While it is true that Sec. 18 penalizes a violation of any provision of R.A. No. 6132 including Sec. 8(a) thereof, the penalty is imposed only for acts committed after the approval of the law and not those perpetrated prior thereto. There is nothing in the law that remotely insinuates that Secs. 8(a) and 18, or any other provision thereof, shall apply to acts carried out prior to its approval. On the contrary, See. 23 directs that the entire law shall be effective upon its approval. It was approved on August 24, 1970. WHEREFORE, the prayer of the petition is hereby denied and paragraph 1 of Sec. 8(a) of R.A. No. 6132 is not unconstitutional. Without costs.

MAKASIAR, J.:. Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur. This petition for declaratory relief was filed by Kay Villegas Kami, Inc., claiming to be a duly recognized and existing non-stock and non-profit corporation created under the laws of the land, and praying for a determination of the validity of Sec. 8 of R.A. No. 6132 and a declaration of petitioner's rights and duties thereunder. In paragraph 7 of its petition, petitioner avers that it has printed materials designed to propagate its ideology and program of government, which materials include Annex B; and that in paragraph 11 of said petition, petitioner intends to pursue its purposes by supporting delegates to the Constitutional Convention who will propagate its ideology. Petitioner, in paragraph 7 of its petition, actually impugns because it quoted, only the first paragraph of Sec. 8(a) on the ground that it violates the due process clause, right of association, and freedom of expression and that it is an ex post facto law. The first three grounds were overruled by this Court when it held that the questioned provision is a valid limitation on the due process, freedom of expression, freedom of association, freedom of assembly and equal protection clauses; for the same is designed to prevent the clear and present danger of the twin substantive evils, namely, the prostitution of electoral process and denial of the equal protection of the laws. Moreover, under the balancing-of-interests test, the cleansing of the electoral process, the guarantee of equal change for all candidates, and the independence of the delegates who must be "beholden to no one but to God, country and conscience," are interests that should be accorded primacy.1 The petitioner should therefore be accordingly guided by the pronouncements in the cases of Imbong and Gonzales.2 The claim of petitioner that the challenged provision constitutes an ex post facto law is likewise untenable. An ex post facto law is one which:. (1) makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; (2) aggravates a crime, or makes it greater than it was, when committed; (3) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (4) alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; (5) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and (6) deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.3 From the aforesaid definition as well as classification of ex post facto laws, the constitutional inhibition refers only to criminal laws which are given retroactive effect.4

Zaldivar, J., reserves his vote. Concepcion, C.J., is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. L-32613-14 December 27, 1972 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba," respondents. Solicitor R. Mutuc for respondent Feliciano Co. Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p I. Statement of the Case Posed in issue in these two cases is the constitutionality of the Anti-Subversion Act,1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization. On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file the corresponding information. The twice-amended information, docketed as Criminal Case No. 27, recites: That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and illegal organization aimed to overthrow the Government of the Philippines by means of force, violence, deceit, subversion, or any other illegal means for the purpose of establishing in the Philippines a totalitarian regime and placing the government under the control and domination of an alien power, by being an instructor in the Mao Tse Tung University, the training school of recruits of the New People's Army, the military arm of the said Communist Party of the Philippines. That in the commission of the above offense, the following aggravating circumstances are present, to wit: (a) That the crime has been committed in contempt of or with insult to public authorities; (b) That the crime was committed by a band; and afford impunity. (c) With the aid of armed men or persons who insure or afford impunity. Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder. Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an information was filed, which, as amended, reads: The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL ALAVADO,

BENJAMIN BIE alias COMMANDER MELODY and several JOHN DOES, whose identities are still unknown, for violation of REPUBLIC ACT No. 1700, otherwise known as the AntiSubversion Law, committed as follows: That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in the Philippines, the above-named accused knowingly, willfully and by overt acts organized, joined and/or remained as offices and/or ranking leaders, of the KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto, knowingly, willfully and by over acts joined and/or remained as a member and became an officer and/or ranking leader not only of the Communist Party of the Philippines but also of the New People's Army, the military arm of the Communist Party of the Philippines; and that all the above-named accused, as such officers and/or ranking leaders of the aforestated subversive organizations, conspiring, confederating and mutually helping one another, did then and there knowingly, willfully and feloniously commit subversive and/or seditious acts, by inciting, instigating and stirring the people to unite and rise publicly and tumultuously and take up arms against the government, and/or engage in rebellious conspiracies and riots to overthrow the government of the Republic of the Philippines by force, violence, deceit, subversion and/or other illegal means among which are the following: 1. On several occasions within the province of Tarlac, the accused conducted meetings and/or seminars wherein the said accused delivered speeches instigating and inciting the people to unite, rise in arms and overthrow the Government of the Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal means; and toward this end, the said accused organized, among others a chapter of the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed purpose of undertaking or promoting an armed revolution, subversive and/or seditious propaganda, conspiracies, and/or riots and/or other illegal means to discredit and overthrow the Government of the Republic of the Philippines and to established in the Philippines a Communist regime. 2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above subversive and/or seditious activities in San Pablo City by recruiting members for the New People's Army, and/or by instigating and inciting the people to organize and unite for the purpose of overthrowing the Government of the Republic of the Philippines through armed revolution, deceit, subversion and/or other illegal means, and establishing in the Philippines a Communist Government. That the following aggravating circumstances attended the commission of the offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed. On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denied him the equal protection of the laws. Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970, declared the statute void on the grounds that it is a bill of attainder and that it is vague and overboard, and dismissed the informations against the two accused. The Government appealed. We resolved to treat its appeal as a special civil action for certiorari. II. Is the Act a Bill of Attainder?

Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be enacted."2 A bill of attainder is a legislative act which inflicts punishment without trial.3 Its essence is the substitution of a legislative for a judicial determination of guilt.4 The constitutional ban against bills of attainder serves to implement the principle of separation of powers 5 by confining legislatures to rule-making 6 and thereby forestalling legislative usurpation of the judicial function.7 History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, 8 and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute as a bill of attainder. 9 In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the freedom and security of the country; its existence, a 'clear, present and grave danger to the security of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of attainder because it has expressly created a presumption of organizational guilt which the accused can never hope to overthrow." 1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. 10 This feature of the Act distinguishes it from section 504 of the U.S. Federal LaborManagement Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and therefore unconstitutional. Section 504 provided in its pertinent parts as follows: (a) No person who is or has been a member of the Communist Party ... shall serve — (1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization. during or for five years after the termination of his membership in the Communist Party.... (b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both. This statute specified the Communist Party, and imposes disability and penalties on its members. Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or a member of the governing body of any labor organization. As the Supreme Court of the United States pointed out: Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact legislation designed to keep from positions affecting interstate commerce persons who may use of such positions to bring about political strikes. In section 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leaves to courts and juries the job of deciding what persons

have committed the specified acts or possessed the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability — members of the Communist Party. Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That case involved an appeal from an order by the Control Board ordering the Communist Party to register as a "Communist-action organization," under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-action organization" which the Board is to apply is set forth in sec. 3 of the Act: [A]ny organization in the United States ... which (i)is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and(ii) operates primarily to advance the objectives of such world Communist movement... 64 Stat 989, 50 USC sec. 782 (1958 ed.) A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that sec. 3 does not specify the persons or groups upon which the deprivations setforth in the Act are to be imposed, but instead sets forth a general definition. Although the Board has determined in 1953 that the Communist Party was a "Communist-action organization," the Court found the statutory definition not to be so narrow as to insure that the Party would always come within it: In this proceeding the Board had found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtud of the activities in which it now engages, comes within the terms of the Act. If the Party should at anytime choose to abandon these activities, after it is once registered pursuant to sec. 7, the Act provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683) Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and place the country under the control and domination of a foreign power. As to the claim that under the statute organizationl guilt is nonetheless imputed despite the requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the criminal covenant are liable. The contention would be correct if the statute were construed as punishing mere membership devoid of any specific intent to further the unlawful goals of the Party. 13 But the statute specifically required that membership must be knowing or active, with specific intent to further the illegal objectives of the Party. That is what section 4 means when it requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." 14 The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts." 15 This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the organization's illegal objectives. 2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a bill of attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as officers or employees of national banks on the basis of a legislative finding that the persons mentioned would be subject to the temptation to commit acts deemed inimical to the national economy, has been declared not to be a bill of attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a membership of at least twenty to register, and punishing any person who becomes a member of such society which fails to register or

remains a member thereof, was declared valid even if in its operation it was shown to apply only to the members of the Ku Klux Klan. 17 In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to file with the Department of Labor affidavits of union officers "to the effect that they are not members of the Communist Party and that they are not members of any organization which teaches the overthrow of the Government by force or by any illegal or unconstitutional method," was upheld by this Court. 19 Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. 20 It is upon this ground that statutes which disqualified those who had taken part in the rebellion against the Government of the United States during the Civil War from holding office, 21 or from exercising their profession, 22 or which prohibited the payment of further compensation to individuals named in the Act on the basis of a finding that they had engages in subversive activities, 23 or which made it a crime for a member of the Communist Party to serve as an officer or employee of a labor union, 24 have been invalidated as bills of attainder. But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to make such determination. 25 In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every secret, oath-bound society with a membership of at least twenty to register, and punishing any person who joined or remained a member of such a society failing to register. While the statute did not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret, oath-bound organizations like masonic societies and the Knights of Columbus, the United States Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The Court said: The courts below recognized the principle shown in the cases just cited and reached the conclusion that the classification was justified by a difference between the two classes of associations shown by experience, and that the difference consisted (a) in a manifest tendency on the part of one class to make the secrecy surrounding its purpose and membership a cloak for acts and conduct inimical to personal rights and public welfare, and (b) in the absence of such a tendency on the part of the other class. In pointing out this difference one of the courts said of the Ku Klux Klan, the principal association in the included class: "It is a matter of common knowledge that this organization functions largely at night, its members disguised by hoods and gowns and doing things calculated to strike terror into the minds of the people;" and later said of the other class: "These organizations and their purposes are well known, many of them having been in existence for many years. Many of them are oath-bound and secret. But we hear no complaint against them regarding violation of the peace or interfering with the rights of others." Another of the courts said: "It is a matter of common knowledge that the association or organization of which the relator is concededly a member exercises activities tending to the prejudice and intimidation of sundry classes of our citizens. But the legislation is not confined to this society;" and later said of the other class: "Labor unions have a recognized lawful purpose. The benevolent orders mentioned in the Benevolent Orders Law have already received legislative scrutiny and have been granted special privileges so that the legislature may well consider them beneficial rather than harmful agencies." The third court, after recognizing "the potentialities of evil in secret societies," and observing that "the danger of certain organizations has been judicially demonstrated," — meaning in that state, — said: "Benevolent orders, labor unions and college fraternities have existed for many years, and, while not immune from hostile criticism, have on the whole justified their existence." We assume that the legislature had before it such information as was readily available including the published report of a hearing, before a committee of the House of Representatives

of the 57th Congress relating to the formation, purposes and activities of the Klu Klux Klan. If so it was advised — putting aside controverted evidence — that the order was a revival of the Ku Klux Klan of an earlier time with additional features borrowed from the Know Nothing and the A. P. A. orders of other periods; that its memberships was limited to nativeborn, gentile, protestant whites; that in part of its constitution and printed creed it proclaimed the widest freedom for all and full adherence to the Constitution of the United States; in another exacted of its member an oath to shield and preserve "white supremacy;" and in still another declared any person actively opposing its principles to be "a dangerous ingredient in the body politic of our country and an enemy to the weal of our national commonwealth;" that it was conducting a crusade against Catholics, Jews, and Negroes, and stimulating hurtful religious and race prejudices; that it was striving for political power and assuming a sort of guardianship over the administration of local, state and national affairs; and that at times it was taking into its own hands the punishment of what some of its members conceived to be crimes. 27 In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In 1969 we again found that the objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the Philippines a communist form of government similar to that of Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of the Communist Party of the Philippines and the organization of Communist fronts among youth organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines. 3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly objectionable because of its ex post facto features. This is the historic explanation for uniting the two mischiefs in one clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder." 31 Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter of the City of Los Angeles which provided: ... [N]o person shall hold or retain or be eligible for any public office or employment in the service of the City of Los Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior to the effective date of this section advised, advocated, or taught, or who may, after this section becomes effective, become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches or has within said period of five (5) years advised, advocated, or taught the overthrow by force or violence of the Government of the United States of America or of the State of California. In upholding the statute, the Court stressed the prospective application of the Act to the petitioner therein, thus: ... Immaterial here is any opinion we might have as to the charter provision insofar as it purported to apply restrospectively for a five-year period to its effective date. We assume that under the Federal Constitution the Charter Amendment is valid to the extent that it bars from the city's public service persons who, subsequently to its adoption in 1941, advise, advocate, or reach the violent overthrow of the Government or who are or become affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation to protect the municipal service by

establishing an employment qualification of loyalty to the State and the United States.

withthis continuing menace to the freedom and security of the country.

... Unlike the provisions of the charter and ordinance under which petitioners were removed, the statute in the Lovett case did not declare general and prospectively operative standards of qualification and eligibility for public employment. Rather, by its terms it prohibited any further payment of compensationto named individuals or employees. Under these circumstances, viewed against the legislative background, the statutewas held to have imposed penalties without judicial trial.

In truth, the constitutionality of the Act would be opento question if, instead of making these findings in enactingthe statute, Congress omitted to do so.

Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect to the U.S. Federal Subversive Activities ControlAct of 1950: Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it regulates is describedwith such particularity that, in probability, few organizationswill come within the statutory terms. Legislatures may act tocurb behaviour which they regard as harmful to the public welfare,whether that conduct is found to be engaged in by manypersons or by one. So long as the incidence of legislation issuch that the persons who engage in the regulated conduct, bethey many or few, can escape regulation merely by altering thecourse of their own present activities, there can be no complaintof an attainder. 33 This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly statesthat the prohibition therein applies only to acts committed"After the approval of this Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or remain members of the Communist Party of thePhilippines and/or its successors or of any subversive association"after June 20, 1957, are punished. Those whowere members of the Party or of any other subversive associationat the time of the enactment of the law, weregiven the opportunity of purging themselves of liability byrenouncing in writing and under oath their membershipin the Party. The law expressly provides that such renunciationshall operate to exempt such persons from penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable.

In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial distinction, thus: ... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise a question of legislativefact, i.e., whether this standard has a reasonable relationto public health, morals, and the enforcement problem. Alaw forbidding the sale of intoxicating beverages (assuming itis not so vague as to require supplementation by rule-making)would raise a question of adjudicative fact, i.e., whether thisor that beverage is intoxicating within the meaning of the statuteand the limits on governmental action imposed by the Constitution. Of course what we mean by fact in each case is itselfan ultimate conclusion founded on underlying facts and oncriteria of judgment for weighing them. A conventional formulation is that legislative facts — those facts which are relevant to the legislative judgment — will not be canvassed save to determine whether there is a rationalbasis for believing that they exist, while adjudicativefacts — those which tie the legislative enactment to the litigant — are to be demonstrated and found according to the ordinarystandards prevailing for judicial trials. 36 The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio." The recital of legislative findings implements this test. With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control Actof 1950 (that "Communist-action organizations" are controlledby the foreign government controlling the worldCommunist movement and that they operate primarily to"advance the objectives of such world Communist movement"),the U.S. Supreme Court said:

III. The Act and the Requirements of Due Process 1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to provide the basis for a legislativefinding of guilt of the members of the Party butrather to justify the proscription spelled out in section 4. Freedom of expression and freedom of association are sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence of a substantive evil. This isthe reason why before enacting the statute in question Congressconducted careful investigations and then stated itsfindings in the preamble, thus: ... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an organized conspiracyto overthrow the Government of the Republic of the Philippinesnot only by force and violence but also by deceit, subversionand other illegal means, for the purpose of establishing in thePhilippines a totalitarian regime subject to alien dominationand control; ... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a clear, present andgrave danger to the security of the Philippines; ... [I]n the face of the organized, systematice and persistentsubversion, national in scope but international in direction,posed by the Communist Party of the Philippines and its activities,there is urgent need for special legislation to cope

It is not for the courts to reexamine the validity of theselegislative findings and reject them....They are the productof extensive investigation by Committes of Congress over morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we accept them, as we mustas a not unentertainable appraisal by Congress of the threatwhich Communist organizations pose not only to existing governmentin the United States, but to the United States as asovereign, independent Nation. ...we must recognize that thepower of Congress to regulate Communist organizations of thisnature is extensive. 39 This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-Subversion Act. That the Government has a right to protect itself againstsubversion is a proposition too plain to require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no subordinate value can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United States: 41 Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against dictatorial governmentsis without force where the existing structure of government provides for peaceful and orderly change. We rejectany principle of governmental helplessness in the face of preparationfor revolution, which principle, carried to its logical

conclusion,must lead to anarchy. No one could conceive that it isnot within the power of Congress to prohibit acts intended tooverthrow the government by force and violence.

In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47 It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally protected speech, and itwas further established that a combination to promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty, is not such association as is protected by the firstAmendment. We can discern no reason why membership, whenit constitutes a purposeful form of complicity in a group engagingin this same forbidden advocacy, should receive anygreater degree of protection from the guarantees of that Amendment.

2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof), Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental personal liberties when the end can be more narrowly achieved." 42 The requirement of knowing membership,as distinguished from nominal membership, hasbeen held as a sufficient basis for penalizing membershipin a subversive organization. 43 For, as has been stated: Membership in an organization renders aid and encouragement to the organization; and when membership is acceptedor retained with knowledge that the organization is engaged inan unlawful purpose, the one accepting or retaining membershipwith such knowledge makes himself a party to the unlawfulenterprise in which it is engaged. 44 3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of "overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the definitionsof and the penalties prescribed for the different acts prescribedare stated in section 4 which requires that membershipin the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in section 2 appearsto be due more to an oversight rather than to deliberateomission. Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law does not speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow" in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the "overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the Government under thecontrol and domination of an alien power." What thisCourt once said in a prosecution for sedition is appropos: "The language used by the appellant clearly imported anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which the appellant wouldhave us impute to the language." 45 IV. The Act and the Guaranty of Free Expression As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence orother illegal means. Whatever interest in freedom of speechand freedom of association is infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding considerationsof national security and the preservartion of democraticinstitutions in his country. The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership provision ofthe Anti-Subversion Act. The former provides: Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons who teach, advocate, orencourage the overthrow or destruction of any such governmentby force or violence; or becomes or is a member of, or affiliatedwith, any such society, group or assembly of persons, knowingthe purpose thereof — Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall be ineligible for emplymentby the United States or any department or agencythereof, for the five years next following his conviction.... 46

Moreover, as was held in another case, where the problemsof accommodating the exigencies of self-preservationand the values of liberty are as complex and intricate as inthe situation described in the legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the legislative judgment as to how that threat may best bemet consistently with the safeguards of personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom tohire or freedom to speak, is itself an effort at compromisebetween the claims of the social order and individual freedom,and when the legislative compromise in either case isbrought to the judicial test the court stands one step removedfrom the conflict and its resolution through law." 49 V. The Act and its Title The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill." 50 What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4 which reads: And provided, finally, That one who conspires with anyother person to overthrow the Government of the Republic ofthe Philippines, or the government of any of its political subdivisionsby force, violence, deceit, subversion or illegal means,for the purpose of placing such Government or political subdivisionunder the control and domination of any lien power, shallbe punished by prision correccional to prision mayor with allthe accessory penalties provided therefor in the same code. It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the national or any local governmentby illegal means, even if their intent is not to establisha totalitarian regime, burt a democratic regime, evenif their purpose is not to place the nation under an aliencommunist power, but under an alien democratic power likethe United States or England or Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia." The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title. Section 1 providesthat "This Act shall be known as the Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates that the subject matter is subversionin general which has for its fundamental purpose the substitutionof a foreign totalitarian regime in place of theexisting Government and not merely subversion by Communistconspiracies.. The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences of the proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the statute will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the AntiSubversion Act fully satisfies these requirements. VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under the Act.The Government, in addition to proving such circumstancesas may affect liability, must establish the following elementsof the crime of joining the Communist Party of the Philippinesor any other subversive association: (1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and (2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of the Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert acts. We refrain from making any pronouncement as to thecrime or remaining a member of the Communist Party ofthe Philippines or of any other subversive association: weleave this matter to future determination. ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are herebyremanded to the court a quo for trial on the merits. Costs de oficio. Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur. Concepcion, C.J., concurs in the result. Makasiar and Antonio, JJ., took no part.

FIRST DIVISION G.R. No. 127930 December 15, 2000 MIRIAM COLLEGE FOUNDATION, INC., petitioner, vs. HON. COURT OF APPEALS, JASPER BRIONES, JEROME GOMEZ, RELLY CARPIO, ELIZABETH VALDEZCO, JOSE MARI RAMOS, CAMILLE PORTUGAL, JOEL TAN and GERALD GARY RENACIDO, respondents.

"Pare tingnan natin kung immortal itong baboy na ito. He! He! He! He! Sabad ng sabog nilang drayber/bokalista." The story ends (with their car about to hit a truck) in these words: . . . "Pare . . . trak!!! Put . . .!!!! Ang Magasing Pampanitikan, October, 1994 issue, was in turn, given the cover title of "Libog at iba pang tula."

KAPUNAN, J.: "Obscene," "vulgar," "indecent," "gross," "sexually explicit," "injurious to young readers," and devoid of all moral values."1 This was now some members of the Miriam College community allegedly described the contents of the September-October 1994 issue (Vol. 41, No. 14) of Miriam College's school paper (Chi-Rho), and magazine (Ang Magasing Pampanitikan ng Chi-Rho). The articles in the Chi-Rho included: . . . a story, clearly fiction, entitled 'Kaskas' written by one Gerald Garry Renacido . . . Kaskas, written in Tagalog, treats of the experience of a group of young, male, combo players who, one evening, after their performance went to see a bold show in a place called "Flirtation". This was the way the author described the group's exposure during that stage show:

In his foreword which Jerome Gomez entitled "Foreplay", Jerome wrote: "Alam ko, nakakagulat ang aming pamagat." Jerome then proceeded to write about previous reactions of readers to women-writers writing about matters erotic and to gay literature. He justified the Magazine's erotic theme on the ground that many of the poems passed on to the editors were about "sekswalidad at iba't ibang karanasan nito." Nakakagulat ang tapang ng mga manunulat . . . tungkol sa maselang usaping ito . . . at sa isang institusyon pang katulad ng Miriam!" Mr. Gomez quoted from a poem entitled "Linggo" written by himself: may mga palangganang nakatiwangwang -

"Sige, sa Flirtation tayo. Happy hour na halos . . . he! he! he! sambit ng kanilang bokalistang kanina pa di maitago ang pagkahayok sa karneng babae na kanyang pinananabikan nuong makalawa pa, susog naman ang tropa. ". . . Pumasok ang unang mananayaw. Si 'Red Raven' ayon sa emcee. Nakasuot lamang ng bikining pula na may palamuting dilaw sa gilid-gilid at sa bandang utong. Nagsimula siya sa kanyang pag-giling nang tumugtog na ang unang tono ng "Goodbye" ng Air Supply. Dahan-dahan ang kanyang mga malalantik at mapang-akit na galaw sa una. Mistulang sawa na nililingkis ang hangin, paru-parong padapo-dapo sa mga bulaklak na lamesa, di-upang umamoy o kumuha ng nektar, ngunit para ipaglantaran ang sariling bulaklak at ang angkin nitong malansang nektar. "Kaskas mo babe, sige . . . kaskas." Napahaling ang tingin ng balerinang huwad kay Mike. Mistulang natipuhan, dahil sa harap niya'y nagtagal. Nagakmang mag-aalis ng pangitaas na kapirasong tela. Hindi nakahinga si Mike, nanigas sa kanyang kinauupuan, nanigas pati ang nasa gitna ng kanyang hita. Ang mga mata niya'y namagnet sa kayamanang ngayo'y halos isang pulgada lamang mula sa kanyang naglalaway na bunganga. Naputol-putol ang kanyang hininga nang kandungan ni 'Red Raven' ang kanyang kanang hita. Lalo naghingalo siya nang kabayuhin ito ng dahan dahan . . . Pabilis ng pabilis.' The author further described Mike's responses to the dancer as follows (quoted in part): . . . Nagsimulang lumaban na ng sabayan si Mike sa dancer. Hindi nagpatalo ang ibong walang pakpak, inipit ng husto ang hita ni Mike at pinag-udyukan ang kanyang dibdib sa mukha nito. "Kaskas mo pa, kaskas mo pa!" Palpakan at halagpakan na tawanan ang tumambad sa kanya ng biglang halikan siya nito sa labi at iniwang bigla, upang kanyang muniin ang naudlot niyang pagtikim ng karnal na nektar. Hindi niya maanto kung siya ay nanalo o natalo sa nangyaring sagupaan ng libog. Ang alam lang niya ay nanlata na siya." After the show the group went home in a car with the bokalista driving. A pedestrian happened to cross the street and the driver deliberately hit him with these words:

mga putang biyak na sa gitna, 'di na puwedeng paglabhan, 'di na maaaring pagbabaran . . ." Gomez stated that the poems in the magazine are not "garapal" and "sa mga tulang ito namin maipagtatanggol ang katapangan (o pagkasensasyonal) ng pamagat na "Libog at iba pang Tula." He finished "Foreplay" with these words: "Dahil para saan pa ang libog kung hindi ilalabas?" The cover title in question appears to have been taken from a poem written by Relly Carpio of the same title. The poem dealt on a woman and a man who met each other, gazed at each other, went up close and "Naghalikan, Shockproof." The poem contained a background drawing of a woman with her two mammary and nipples exposed and with a man behind embracing her with the woman in a pose of passion-filled mien. Another poem entitled 'Virgin Writes Erotic' was about a man having fantasies in his sleep. The last verse said: "At zenith I pull it out and find myself alone in this fantasy." Opposite the page where this poem appeared was a drawing of a man asleep and dreaming of a naked woman (apparently of his dreams) lying in bed on her buttocks with her head up (as in a hospital bed with one end rolled up). The woman's right nipple can be seen clearly. Her thighs were stretched up with her knees akimbo on the bed. In the next page (page 29) one finds a poem entitled "Naisip ko Lang" by Belle Campanario. It was about a young student who has a love-selection problem: ". . . Kung sinong pipiliin: ang teacher kong praning, o ang boyfriend kong bading." The word "praning" as the court understands it, refers to a paranoid person; while the word "bading" refers to a sward or "bakla" or "badidang". This poem also had an illustration behind it: of a young girl with large eyes and sloping hair cascading down her curves and holding a peeled banana whose top the illustrator shaded up with downward-slanting strokes. In the poem, the girl wanted to eat banana topped by peanut butter. In line with Jerome's "Foreplay" and by the way it was drawn that banana with peanut butter top was meant more likely than not, to evoke a spiritedly mundane, mental reaction from a young audience. Another poem entitled "Malas ang Tatlo" by an unknown author went like this: 'Na picture mo na ba

er

no'ng magkatabi tayong dalawa sa pantatluhang sofa ikaw, the legitimate asawa at ako, biro mo, ang kerida?

4. Deborah Ligon

suspension up to May, 1995. Miss Ligon is a 4th year student and could graduate laude;

5. Elizabeth Valdezco

suspension up to (summer) March, 1995;

6. Camille Portugal

graduation privileges withheld, including diploma. She is an Octoberian;

7. Joel Tan

suspension for two (2) weeks to expire on February 2, 1995;

8. Gerald Gary Renacido

Expelled and given transfer credentials. He is a 2nd year student. He wrote the fictio

tapos, tumabi siya, shit!

9. Relly Carpio

Dismissed and given transfer credentials. He is in 3rd year and wrote the poem "Libo

kumpleto na:

10. Jerome Gomez

Dismissed and given transfer credentials. He is in 3rd year. He wrote the foreword " questioned Anthology of Poems; and

ikaw, ako at siya

11. Jose Mari Ramos

Expelled and given transfer papers. He is a 2nd year student and art editor of Chi-Rh

kulang na lang, kamera." A poem "Sa Gilid ng Itim" by Gerald Renacido in the Chi-Rho broadsheet spoke of a fox (lobo) yearning for "karneng sariwa, karneng bata, karneng may kalambutan . . . isang bahid ng dugong dalaga, maamo't malasa, ipahid sa mga labing sakim sa romansa' and ended with 'hinog na para himukin bungang bibiyakin."2 Following the publication of the paper and the magazine, the members of the editorial board,3 and Relly Carpio, author of Libog, all students of Miriam College, received a letter signed by Dr. Aleli Sevilla, Chair of the Miriam College Discipline Committee. The Letter dated 4 November 1994 stated: This is to inform you that the letters of complain filed against you by members of the Miriam Community and a concerned Ateneo grade five student have been forwarded to the Discipline Committee for inquiry and investigation. Please find enclosed complaints. As expressed in their complaints you have violated regulations in the student handbook specifically Section 2 letters B and R, pages 30 and 32, Section 4 (Major offenses) letter j, page 36 letters m, n, and p, page 37 and no. 2 (minor offenses) letter a, page 37. You are required to submit a written statement in answer to the charge/s on or before the initial date of hearing to be held on November 15, 1994, Tuesday, 1:00 in the afternoon at the DSA Conference Room.4 None of the students submitted their respective answers. They instead requested Dr. Sevilla to transfer the case to the Regional Office of the Department of Education, Culture and Sports (DECS) which under Rule XII of DECS Order No. 94, Series of 1992, supposedly had jurisdiction over the case.5 In a Letter dated 21 November 1994, Dr. Sevilla again required the students to file their written answers. In response, Atty. Ricardo Valmonte, lawyer for the students, submitted a letter6 to the Discipline Committee reiterating his clients' position that said Committee had no jurisdiction over them. According to Atty. Valmonte, the Committee was "trying to impose discipline on his clients on account of their having written articles and poems in their capacity as campus journalists." Hence, he argued that "what applies is Republic Act No. 7079 The Campus Journalism Act and its implementing rules and regulations." He also questioned the partiality of the members of said Committee who allegedly "had already articulated their position" against his clients. The Discipline Committee proceeded with its investigation ex parte. Thereafter, the Discipline Board, after a review of the Discipline Committee's report, imposed disciplinary sanctions upon the students, thus:

Expulsion. Briones is the Editor-in-Chief of Chi-Rho and a 4th year student; suspension up to (summer) March, 1995; suspension for two (2) weeks to expire on February 2, 1995;

The above students thus filed a petition for prohibition and certiorari with preliminary injunction/restraining order before the Regional Trial Court of Quezon City questioning the jurisdiction of the Discipline Board of Miriam College over them. On 17 January 1995, the Regional Trial Court, Branch CIII, presided by Judge Jaime N. Salazar, Jr., issued an order denying the plaintiffs' prayer for a Temporary Restraining Order. It held: There is nothing in the DECS Order No. 94, S. 1992 dated August 19, 1992 that excludes school Administrators from exercising jurisdiction over cases of the nature involved in the instant petition. R.A. 7079 also does not state anything on the matter of jurisdiction. The DECS undoubtedly cannot determine the extent of the nature of jurisdiction of schools over disciplinary cases. Moreover, as this Court reads that DECS Order No. 94, S. of 1992, it merely prescribes for purposes of internal administration which DECS officer or body shall hear cases arising from R A. 7079 if and when brought to it for resolution. The said order never mentioned that it has exclusive jurisdiction over cases falling under R.A. 707.8 The students thereafter filed a "Supplemental Petition and Motion for Reconsideration." The College followed with its Answer. Subsequently, the RTC issued an Order dated 10 February 1995 granting the writ of preliminary injunction. ACCORDINGLY, so as not to render the issues raised moot and academic, let a writ of preliminary injunction issue enjoining the defendants, including the officers and members of the Disciplinary Committee, the Disciplinary Board, or any similar body and their agents, and the officers and members of the Security Department, Division, or Security Agency securing the premises and campus of Miriam College Foundation, Inc. from: 1. Enforcing and/or implementing the expulsion or dismissal resolutions or orders complained of against herein plaintiffs (a) Jasper Briones; (b) Gerald Gary Renacido; (c) Relly Carpio; (d) Jerome Gomez; and (e) Jose Mari Ramos, but otherwise allowing the defendants to impose lesser sanctions on aforementioned plaintiffs; and 2. Disallowing, refusing, barring or in any way preventing the herein plaintiffs (all eleven of them) from taking tests or exams and entering the Miriam campus for such purpose as extended to all students of Miriam College Foundation, Inc.; neither should their respective course or subject teachers or professors withhold their grades, including final grades, if and when they meet the requirements similarly prescribed for all other students, this current 2nd Semester of 1994-95. The sanctions imposed on the other plaintiffs, namely, Deborah Ligon, Imelda Hilario, Elizabeth Valdezco, Camille Portugal and Daphne Cowper, shall remain in force and shall not be covered by this Injunction: Provided, that Camille Portugal now a graduate, shall have the right to receive her diploma, but defendants are not hereby prevented from refusing her the

privilege of walking on the graduation stage so as to prevent any likely public tumults. The plaintiffs are required to post an injunction bond in the sum of Four Thousand Pesos (P4,000.00) each. SO ORDERED.9 Both parties moved for a reconsideration of the above order. In an Order dated 22 February 1995, the RTC dismissed the petition, thus: 4. On the matter raised by both parties that it is the DECS which has jurisdiction, inasmuch as both parties do not want this court to assume jurisdiction here then this court will not be more popish than the Pope and in fact is glad that it will have one more case out of its docket. ACCORDINGLY, the instant case is hereby DISMISSED without prejudice to the parties going to another forum. All orders heretofore issued here are hereby recalled and set aside. SO ORDERED.10 The students, excluding Deborah Ligon, Imelda Hilario and Daphne Cowper, sought relief in this Court through a petition for certiorari and prohibition of preliminary injunction/restraining order11 questioning the Orders of the RTC dated 10 and 24 February 1995. On 15 March 1995, the Court resolved to refer the case to the Court of Appeals (CA) for disposition.12 On 19 May 1995, the CA issued a resolution stating: The respondents are hereby required to file comment on the instant petition and to show cause why no writ of preliminary injunction should be issued, within ten (10) days from notice hereof, and the petitioners may file reply thereto within five (5) days from receipt of former's comment. In order not to render ineffectual the instant petition, let a Temporary Restraining Order be issued enjoining the public respondents from enforcing letters of dismissal/suspension dated January 19, 1995. SO ORDERED.13 In its Decision dated 26 September 1996, respondent court granted the students' petition. The CA declared the RTC Order dated 22 February 1995, as well as the students' suspension and dismissal, void. Hence, this petition by Miriam College. We limit our decision to the resolution of the following issues: (1) The alleged moot character of the case. (2) The jurisdiction of the trial court to entertain the petition for certiorari filed by the students. (3) The power of petitioner to suspend or dismiss respondent students. (4) The jurisdiction of petitioner over the complaints against the students. We do not tackle the alleged obscenity of the publication, the propriety of the penalty imposed or the manner of the imposition thereof. These issues, though touched upon by the parties in the proceedings below, were not fully ventilated therein. I Petitioner asserts the Court of Appeals found the case moot thus:

While this petition may be considered moot and academic since more than one year have passed since May 19, 1995 when this court issued a temporary restraining order enjoining respondents from enforcing the dismissal and suspension on petitioners . . .14 Since courts do not adjudicate moot cases, petitioner argues that the CA should not have proceeded with the adjudication of the merits of the case. We find that the case is not moot. It may be noted that what the court issued in 19 May 1995 was a temporary restraining order, not a preliminary injunction. The records do not show that the CA ever issued a preliminary injunction. Preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to perform to refrain from performing a particular act or acts.15 As an extraordinary remedy, injunction is calculated to preserve or maintain the status quo of things and is generally availed of to prevent actual or threatened acts, until the merits of the case can be heard.16 A preliminary injunction persists until it is dissolved or until the termination of the action without the court issuing a final injunction. The basic purpose of restraining order, on the other hand, is to preserve the status quo until the hearing of the application for preliminary injunction.17 Under the former 5, Rule 58 of the Rules of Court, as amended by 5, Batas Pambansa Blg. 224, a judge (or justice) may issue a temporary restraining order with a limited life of twenty days from date of issue.18 If before the expiration of the 20-day period the application for preliminary injunction is denied, the temporary order would thereby be deemed automatically vacated. If no action is taken by the judge on the application for preliminary injunction within the said 20 days, the temporary restraining order would automatically expire on the 20th day by the sheer force of law, no judicial declaration to that effect being necessary.19 In the instant case, no such preliminary injunction was issued; hence, the TRO earlier issued automatically expired under the aforesaid provision of the Rules of Court.20 This limitation as to the duration of the temporary restraining order was the rule prevailing when the CA issued its TRO dated 19 May 1995.21 By that time respondents Elizabeth Valdezco and Joel Tan had already served their respective suspensions. The TRO was applicable only to respondents Jasper Briones, Jerome Gomez, Relly Carpio, Jose Mari Ramos and Gerald Gary Renacido all of whom were dismissed, and respondent Camille Portugal whose graduation privileges were withheld. The TRO, however, lost its effectivity upon the lapse of the twenty days. It can hardly be said that in that short span of time, these students had already graduated as to render the case moot. Either the CA was of the notion that its TRO was effective throughout the pendency of the case or that what is issued was a preliminary injunction. In either case, it was error on the part of the CA to assume that its order supposedly enjoining Miriam from enforcing the dismissal and suspension was complied with. A case becomes moot and academic when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits.22 To determine the moot character of a question before it, the appellate court may receive proof or take notice of facts appearing outside the record.23 In the absence of such proof or notice of facts, the Court of Appeals should not have assumed that its TRO was enforced, and that the case was rendered moot by the mere lapse of time. Indeed, private respondents in their Comment herein24 deny that the case has become moot since Miriam refused them readmission in violation of the TRO. This fact is unwittingly conceded by Miriam itself when, to counter this allegation by the students, it says that private respondents never sought readmission after the restraining order was issued.25 In truth, Miriam relied on legal technicalities to subvert the clear intent of said order, which states: In order not to render ineffectual the instant petition, let a Temporary Restraining Order be issued enjoining the public respondents from enforcing letters of dismissal/suspension dated January 19, 1995. Petitioner says that the above order is "absurd" since the order "incorrectly directs public respondent, the Hon. Jaime Salazar, presiding judge of the Regional Trial Court of Quezon City not to dismiss or suspend the students."26

We do not agree. Padua vs. Robles27 lays down the rules in construing judgments. We find these rules to be applicable to court orders as well: The sufficiency and efficacy of a judgment must be tested by its substance rather than its form. In construing a judgment, its legal effects including such effects that necessarily follow because of legal implications, rather than the language used, govern. Also, its meaning, operation, and consequences must be ascertained like any other written instrument. Thus, a judgment rests on the intent of the court as gathered from every part thereof, including the situation to which it applies and attendant circumstances. (Emphasis supplied.) Tested by such standards, we find that the order was indeed intended for private respondents (in the appellate court) Miriam College, et al., and not public respondent Judge. In dismissing the case, the trial judge recalled and set aside all orders it had previously issued, including the writ of preliminary injunction. In doing so, the trial court allowed the dismissal and suspension of the students to remain in force. Thus, it would indeed be absurd to construe the order as being directed to the RTC. Obviously, the TRO was intended for Miriam College. True, respondent-students should have asked for a clarification of the above order. They did not. Nevertheless, if Miriam College found the order "absurd," then it should have sought a clarification itself so the Court of Appeals could have cleared up any confusion. It chose not to. Instead, it took advantage of the supposed vagueness of the order and used the same to justify its refusal to readmit the students. As Miriam never readmitted the students, the CA's ruling that the case is moot has no basis. How then can Miriam argue in good faith that the case had become moot when it knew all along that the facts on which the purported moot character of the case were based did not exist? Obviously, Miriam is clutching to the CA's wrongful assumption that the TRO it issued was enforced to justify the reversal of the CA's decision. Accordingly, we hold that the case is not moot, Miriam's pretensions to the contrary notwithstanding. II "To uphold and protect the freedom of the press even at the campus level and to promote the development and growth of campus journalism as a means of strengthening ethical values, encouraging critical and creative thinking, and developing moral character and personal discipline of the Filipino youth,"28 Congress enacted in 1991 Republic Act No. 7079. Entitled "AN ACT PROVIDING FOR THE DEVELOPMENT AND PROMOTION OF CAMPUS JOURNALISM AND FOR OTHER PURPOSES,"29 the law contains provisions for the selection of the editorial board30 and publication adviser,31 the funding of the school publication,32 and the grant of exemption to donations used actually, directly and exclusively for the promotion of campus journalism from donor's or gift tax.33

SECTION 1. The Department of Education, Culture and Sports (DECS) shall help ensure and facilitate the proper carrying out of the Implementing Rules and Regulations of Republic Act No. 7079. It shall also act on cases on appeal brought before it. The DECS regional office shall have the original jurisdiction over cases as a result of the decisions, actions and policies of the editorial board of a school within its area of administrative responsibility. It shall conduct investigations and hearings on the these cases within fifteen (15) days after the completion of the resolution of each case. (Emphasis supplied.) The latter two provisions of law appear to be decisive of the present case. It may be recalled that after the Miriam Disciplinary Board imposed disciplinary sanctions upon the students, the latter filed a petition for certiorari and prohibition in the Regional Trial Court raising, as grounds therefor, that: I DEFENDANT'S DISCIPLINARY COMMITTEE AND DISCIPLINARY BOARD OF DEFENDANT SCHOOL HAVE NO JURISDICTION OVER THE CASE.35 II DEFENDANT SCHOOL'S DISCIPLINARY COMMITTEE AND THE DISCIPLINARY BOARD DO NOT HAVE THE QUALIFICATION OF AN IMPARTIAL AND NEUTRAL ARBITER AND, THEREFORE THEIR TAKING COGNIZANCE OF THE CASE AGAINST PLAINTIFFS WILL DENY THE LATTER OF THEIR RIGHT TO DUE PROCESS.36 Anent the first ground, the students theorized that under Rule XII of the Rules and Regulations for the Implementation of R.A. No. 7079, the DECS Regional Office, and not the school, had jurisdiction over them. The second ground, on the other hand, alleged lack of impartiality of the Miriam Disciplinary Board, which would thereby deprive them of due process. This contention, if true, would constitute grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the trial court. These were the same grounds invoked by the students in their refusal to answer the charges against them. The issues were thus limited to the question of jurisdiction - a question purely legal in nature and well within the competence and the jurisdiction of the trial court, not the DECS Regional Office. This is an exception to the doctrine of primary jurisdiction. As the Court held in Phil. Global Communications, Inc. vs. Relova.37 Absent such clarity as to the scope and coverage of its franchise, a legal question arises which is more appropriate for the judiciary than for an administrative agency to resolve. The doctrine of primary jurisdiction calls for application when there is such competence to act on the part of an administrative body. Petitioner assumes that such is the case. That is to beg the question. There is merit, therefore, to the approach taken by private respondents to seek judicial remedy as to whether or not the legislative franchise could be so interpreted as to enable the National Telecommunications Commission to act on the matter. A jurisdictional question thus arises and calls for an answer.

Noteworthy are provisions clearly intended to provide autonomy to the editorial board and its members. Thus, the second paragraph of Section 4 states that "(o)nce the publication is established, its editorial board shall freely determine its editorial policies and-manage the publication's funds." Section 7, in particular, provides: A member of the publication staff must maintain his or her status as student in order to retain membership in the publication staff. A student shall not be expelled or suspended solely on the basis of articles he or she has written, or on the basis of the performance of his or her duties in the student publication.

However, when Miriam College in its motion for reconsideration contended that the DECS Regional Office, not the RTC, had jurisdiction, the trial court, refusing to "be more popish than the Pope," dismissed the case. Indeed, the trial court could hardly contain its glee over the fact that "it will have one more case out of its docket." We remind the trial court that a court having jurisdiction of a case has not only the right and the power or authority, but also the duty, to exercise that jurisdiction and to render a decision in a case properly submitted to it.38 Accordingly, the trial court should not have dismissed the petition without settling the issues presented before it. III

Section 9 of the law mandates the DECS to "promulgate the rules and regulations necessary for the effective implementation of this Act."34 Pursuant to said authority, then DECS Secretary Armand Fabella, issued DECS Order No. 94, Series of 1992, providing under Rule XII that: GENERAL PROVISIONS

Before we address the question of which between the DECS Regional Office and Miriam College has jurisdiction over the complaints against the students, we first delve into the power of either to impose disciplinary sanctions upon the students. Indeed, the resolution of the issue of jurisdiction would be reduced to an academic exercise if neither the DECS Regional Office nor Miriam College had the power to impose sanctions upon the students.

Recall, for purposes of this discussion, that Section 7 of the Campus Journalism Act prohibits the expulsion or suspension of a student solely on the basis of articles he or she has written. A.

More importantly, it will seriously impair petitioner university's academic freedom which has been enshrined in the 1935, 1973 and the present 1987 Constitution.45 Tracing the development of academic freedom, the Court continued:

Section 5 (2), Article XIV of the Constitution guarantees all institutions of higher learning academic freedom. This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint.39 The essential freedoms subsumed in the term "academic freedom" encompasses the freedom to determine for itself on academic grounds:

Since Garcia vs. Loyola School of Theology, we have consistently upheld the salutary proposition that admission to an institution of higher learning is discretionary upon a school, the same being a privilege on the part of the student rather than a right. While under the Education Act of 1982, students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation," such right is subject, as all rights are, to the established academic and disciplinary standards laid down by the academic institution.

(1) Who may teach, "For private schools have the right to establish reasonable rules and regulations for the admission, discipline and promotion of students. This right . . . extends as well to parents . . . as parents under a social and moral (if not legal) obligation, individually and collectively, to assist and cooperate with the schools."

(2) What may be taught, (3) How it shall be taught, and

Such rules are "incident to the very object of incorporation and indispensable to the successful management of the college. The rules may include those governing student discipline." Going a step further, the establishment of the rules governing university-student relations, particularly those pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival.

(4) Who may be admitted to study.40 The right of the school to discipline its students is at once apparent in the third freedom, i.e., "how it shall be taught." A school certainly cannot function in an atmosphere of anarchy. Thus, there can be no doubt that the establishment of an educational institution requires rules and regulations necessary for the maintenance of an orderly educational program and the creation of an educational environment conducive to learning. Such rules and regulations are equally necessary for the protection of the students, faculty, and property.41

Within memory of the current generation is the eruption of militancy in the academic groves as collectively, the students demanded and plucked for themselves from the panoply of academic freedom their own rights encapsulized under the rubric of "right to education" forgetting that, In Hohfeldian terms, they have the concomitant duty, and that is, their duty to learn under the rules laid down by the school.

Moreover, the school has an interest in teaching the student discipline, a necessary, if not indispensable, value in any field of learning. By instilling discipline, the school teaches discipline. Accordingly, the right to discipline the student likewise finds basis in the freedom "what to teach."

. . . It must be borne in mind that universities are established, not merely to develop the intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes; may, the development, or flowering if you will, of the total man.

Incidentally, the school not only has the right but the duty to develop discipline in its students. The Constitution no less imposes such duty.

In essence, education must ultimately be religious - not in the sense that the founders or charter members of the institution are sectarian or profess a religious ideology. Rather, a religious education, as the renowned philosopher Alfred North Whitehead said, is 'an education which inculcates duty and reverence.' It appears that the particular brand of religious education offered by the Ateneo de Manila University has been lost on the respondent students.

All educational institutions shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency.42

Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila University as their own a minute longer, for they may foreseeably cast a malevolent influence on the students currently enrolled, as well as those who come after them.1avvphi1

In Angeles vs. Sison, we also said that discipline was a means for the school to carry out its responsibility to help its students "grow and develop into mature, responsible, effective and worthy citizens of the community."43

Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of Appeals that: "The maintenance of a morally conducive and orderly educational environment will be seriously imperilled, if, under the circumstances of this case, Grace Christian is forced to admit petitioner's children and to reintegrate them to the student body." Thus, the decision of petitioner university to expel them is but congruent with the gravity of their misdeeds.46

Finally, nowhere in the above formulation is the right to discipline more evident than in "who may be admitted to study." If a school has the freedom to determine whom to admit, logic dictates that it also has the right to determine whom to exclude or expel, as well as upon whom to impose lesser sanctions such as suspension and the withholding of graduation privileges. Thus, in Ateneo de Manila vs. Capulong,44 the Court upheld the expulsion of students found guilty of hazing by petitioner therein, holding that: B. No one can be so myopic as to doubt that the immediate reinstatement of respondent students who have been investigated and found guilty by the Disciplinary Board to have violated petitioner university's disciplinary rules and standards will certainly undermine the authority of the administration of the school. This we would be most loathe to do.

Section 4 (1), Article XIV of the Constitution recognizes the State's power to regulate educational institution: The State recognizes the complementary roles of public and private institutions in the educational system and shall exercise reasonable supervision and regulation of all educational institutions.

As may be gleaned from the above provision, such power to regulate is subject to the requirement of reasonableness. Moreover, the Constitution allows merely the regulation and supervision of educational institutions, not the deprivation of their rights.

propensity of speakers to exaggerate, the exuberance of youth. They may give the speakers the benefit of their applause, but with the activity taking place in the school premises and during the daytime, no clear and present danger of public disorder is discernible. This is without prejudice to the taking of disciplinary action for conduct, which, to borrow from Tinker, "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."55

C. In several cases, this Court has upheld the right of the students to free speech in school premises. In the landmark case of Malabanan vs. Ramento,47 students of the Gregorio Araneta University Foundation, believing that the merger of the Institute of Animal Science with the Institute of Agriculture would result in the increase in their tuition, held a demonstration to protest the proposed merger. The rally however was held at a place other than that specified in the school permit and continued longer than the time allowed. The protest, moreover, disturbed the classes and caused the stoppage of the work of non-academic personnel. For the illegal assembly, the university suspended the students for one year. In affirming the students' rights to peaceable assembly and free speech, the Court through Mr. Chief Justice Enrique Fernando, echoed the ruling of the US Supreme Court in Tinker v. Des Moines School District.48 Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so. They enjoy like the rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' While, therefore, the authority of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional safeguards. On a more specific level there is persuasive force to this Fortas opinion. "The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only inevitable part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfering with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. . . . But conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.49 The Malabanan ruling was followed in Villar vs. Technological Institute of the Philippines,50 Arreza vs. Gregorio Araneta University Foundation,51 and Non vs. Dames II.52 The right of the students to free speech in school premises, however, is not absolute. The right to free speech must always be applied in light of the special characteristics of the school environment.53 Thus, while we upheld the right of the students to free expression in these cases, we did not rule out disciplinary action by the school for "conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - which materially disrupts classwork or involves substantial disorder or invasion of the rights of others."54 Thus, in Malabanan, we held: 6. Objection is made by private respondents to the tenor of the speeches by the student leaders. That there would be a vigorous presentation of view opposed to the proposed merger of the Institute of Animal Science with the Institute of Agriculture was to be expected. There was no concealment of the fact that they were against such a move as it confronted them with a serious problem ("isang malaking suliranin.") They believed that such a merger would result in the increase in tuition fees, an additional headache for their parents ("isa na naman sakit sa ulo ng ating mga magulang.") If in the course of such demonstration, with an enthusiastic audience goading them on, utterances extremely critical at times, even vitriolic, were let loose, that is quite understandable. Student leaders are hardly the timid, different types. They are likely to be assertive and dogmatic. They would be ineffective if during a rally they speak in the guarded and judicious language of the academe. At any rate, even a sympathetic audience is not disposed to accord full credence to their fiery exhortations. They take into account the excitement of the occasion, the

It is in the light of this standard that we read Section 7 of the Campus Journalism Act. Provisions of law should be construed in harmony with those of the Constitution; acts of the legislature should be construed, wherever possible, in a manner that would avoid their conflicting with the fundamental law.56 A statute should not be given a broad construction if its validity can be saved by a narrower one.57 Thus, Section 7 should be read in a manner as not to infringe upon the school's right to discipline its students. At the same time, however, we should not construe said provision as to unduly restrict the right of the students to free speech. Consistent with jurisprudence, we read Section 7 of the Campus Journalism Act to mean that the school cannot suspend or expel a student solely on the basis of the articles he or she has written, except when such article materially disrupt class work or involve substantial disorder or invasion of the rights of others. IV. From the foregoing, the answer to the question of who has jurisdiction over the cases filed against respondent students becomes self-evident. The power of the school to investigate is an adjunct of its power to suspend or expel. It is a necessary corollary to the enforcement of rules and regulations and the maintenance of a safe and orderly educational environment conducive to learning.58 That power, like the power to suspend or expel, is an inherent part of the academic freedom of institutions of higher learning guaranteed by the Constitution. We therefore rule that Miriam College has the authority to hear and decide the cases filed against respondent students.1âwphi1.nêt WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE. Petitioner Miriam College is ordered to READMIT private respondent Joel Tan whose suspension has long lapsed. SO ORDERED.

SECOND DIVISION G.R. No. 161172 December 13, 2004 NADINE ROSARIO M. MORALES, petitioner, vs. THE BOARD OF REGENTS OF THE UNIVERSITY OF THE PHILIPPINES, respondent.

By the end of the first semester of school year 1999-2000, the petitioner was included in the list of candidates for graduation "with probable honors" issued by the College of Arts and Letters of UP Diliman. The inclusion of the petitioner in the said list was based on the computation made by the College of Arts and Letters of the petitioner’s General Weighted Average (GWA) inclusive of her grades of 1.0 in German 10 and 11. According to the college’s computation, the petitioner had a GWA of 1.725, clearly above the minimum weighted average grade6 for conferment of cum laude honors.7 Petitioner obtained an average of 1.708 for her remaining subjects in her final semester in the University, bringing her GWA to 1.729, which is definitely higher than the 1.75 average grade required for cum laude honors.

DECISION During the assessment for graduation though, the petitioner was not granted cum laude honors because her grades of 1.0 in the subjects German 10 and 11, which she took when her minor was still German, were excluded in the computation of her GWA, thus bringing her GWA to 1.760, which is lower than the minimum weighted average grade required for the conferment of cum

CHICO-NAZARIO, J.:

laude honors.

"It is an accepted principle that schools of learning are given ample discretion to formulate rules and guidelines in the granting of honors for purposes of graduation. This is part of academic freedom. Within the parameters of these rules, it is within the competence of universities and colleges to determine who are entitled to the grant of honors among the graduating students. Its discretion on this academic matter may not be disturbed much less controlled by the courts unless there is grave abuse of discretion in its exercise."1

Prof. Edwin Thaddeus L. Bautista, Chair of the Department of European Languages, explained that a student following the Plan A curriculum is required to major in one European language other than Spanish, and minor in another or any of the disciplines allowed under the curriculum. In petitioner’s case, her major is French and her minor is Spanish, thus, German does not fit into her curriculum. Furthermore, the Plan A curriculum does not allow for free electives. Electives under said curriculum must be major language electives, which, in the case of petitioner, must have been taken from French courses in either literature or translation. German 10 and 11, being basic language courses, do not fall under electives as contemplated in the Plan A curriculum.

Maintaining that the college’s manner of computing her grades was erroneous, the petitioner wrote Dr. Ofelia Silapan, College The Case

Secretary of the College of Arts and Letters, on 06 April 2000, requesting that her German language subjects (i.e., German 10 and 11) be included in the computation of her GWA, it appearing that such had been done in connection with the inclusion of her

Before Us is a Petition for Review on Certiorari of the Decision2 of the Court of Appeals3 dated 28 November 2003, reversing the

name in the list of those graduating "with probable honors." Said letter was followed-up by another letter signed by petitioner’s

05 September 2002 Order4 of the Regional Trial Court (RTC) of Quezon City, Branch 87.

father, and addressed to Dr. Elena L. Samonte, University Registrar, on 08 April 2000, explaining why petitioner’s German 10 and 11 grades should be included in the computation of her GWA.

The pivotal issue from which this case arose is the interpretation and application of Article 410 of the University of the Philippines (UP) Code which provides:

These letters were taken up on a no-name basis during the 68th meeting of the University Council on 10 April 2000 upon the University Registrar’s endorsement. After deliberating on the matter, the University Council, by a vote of 207 in favor and 4

ART. 410. Students who complete their courses with the following absolute minimum weighted average grade shall be graduated

against, affirmed the recommendation of the European Languages Department and the College of Arts and Letters of not

with honors:

awarding the cum laude honors to the petitioner.

Summa Cum Laude ………..… 1.20

In view of the adverse decision of the University Council, the petitioner, together with her parents, wrote UP President Francisco A. Nemenzo, on 18 April 2000, asking that the merits of petitioner’s case be reviewed and, if deemed appropriate, the same be

Magna Cum Laude …….………1.45

Cum Laude ………………….….1.75

elevated to the UP Board of Regents in order to correct the error in the computation of the petitioner’s GWA.

At the 1142nd meeting of the Board of Regents held on 26 May 2000, petitioner’s appeal was thus discussed, and it was resolved that said appeal be returned to the University Council for further consideration, with full disclosure of who is involved in the

Provided, that all the grades in all subjects prescribed in the curriculum, as well as subjects that qualify as electives, shall be

matter.

included in the computation of the weighted average grade; provided further that in cases where the electives taken are more than those required in the program, the following procedure will be used in selecting the electives to be included in the computation of the weighted average grade:

Petitioner’s case was then again considered by the University Council during its 69th meeting held on 21 June 2000. After much deliberation, the University Council, by a vote of 99 for, 12 against, and 6 abstentions, resolved to reaffirm its earlier decision of 10 April 2000 denying the award of cum laude honors to petitioner.

(I) For students who did not shift programs, consider the required number of electives in chronological order. Upon the denial of the appeal, petitioner’s parents, on petitioner’s behalf and for themselves, submitted a Notice of Appeal dated (II) For students who shifted from one program to another, the electives to be considered shall be selected according to the following order of priority:

27 June 2000 to the Board of Regents through President Nemenzo and, subsequently, an Appeal Memorandum and Supplemental Memorandum dated 24 and 30 August 2000, respectively. The appeal was taken up during the 1144th meeting of the Board of Regents held on 31 August 2000. After a thorough discussion on the proper interpretation and application of Article 410 of the UP

(1) Electives taken in the program where the student is graduating will be selected in chronological order.

Code, the Board of Regents, by a vote of 9 against 2, elected to deny the appeal. Petitioner’s parents thereafter filed a Motion for Reconsideration, but the same was also denied.

(2) Electives taken in the previous program and acceptable as electives in the second program will be selected in chronological order.

Assailing the decision of the UP Board of Regents as erroneous, petitioner, on 21 March 2001, brought a petition for certiorari and mandamus before the RTC, which resolved the case in her favor under Order of 05 September 2002. According

(3) Prescribed courses taken in the previous program, but qualify as electives in the second program will be selected in chronological order.5

to the said Order, the UP Board of Regents gravely abused its discretion in the improper application of its academic discretion in interpreting Article 410 of the UP Code. The lower court, hence, required the respondent UP Board of Regents to re-compute petitioner’s grades by including her grades in German 10 and 11 and to confer upon petitioner cum laude honors. The respondent

The Facts

filed a Motion for Reconsideration on 07 October 2002, which was subsequently denied by the lower court. Upon said denial, the respondent appealed the RTC’s Order to the Court of Appeals by filing a Notice of Appeal dated 14 February 2003.

In the school year 1997-1998, petitioner Nadine Rosario M. Morales transferred from the UP Manila campus, where she was taking up Speech Pathology, to UP Diliman and enrolled in the European Languages undergraduate program under the College of Arts and Letters. Said program has three curricula, namely, Plan A, Plan B, and Plan C. Upon the petitioner’s transfer, she chose the Plan A curriculum and elected French as her major and German as her minor. Under the Plan A curriculum, the student is required to complete 141 units worth of subjects in the University, 27 of which should be electives in his or her minor field of

The petitioner filed a Motion to Dismiss the appeal on 24 April 2003, advancing that the Court of Appeals had no jurisdiction to take cognizance of the appeal, inasmuch as it raised only questions of law. Said argument was reiterated in petitioner’s Memorandum, together with the position that the lower court was correct to find that respondent had gravely abused its discretion in arbitrarily excluding petitioner’s grades in German 10 and 11 from the computation of her GWA.

study. The respondent, for its part, contended that the lower court failed to take into consideration the interpretation of the pertinent During the first semester of school year 1997-1998, the petitioner enrolled in the subjects German 10 and German 11 where she obtained the grades of 1.0 in both subjects. At the start of the second semester, however, the petitioner changed her language minor from German to Spanish, while maintaining French as her major.

provision of the UP Code arrived at by the University Council during its deliberations. It instead, substituted its own interpretation in violation of the academic freedom of UP as an institution of higher learning.

Noting the identity of the arguments raised by petitioner in both her Motion to Dismiss and Memorandum, the Court of Appeals,

We agree with petitioner that respondent’s appeal to the appellate court raises only questions of law. There is a question of law

in a resolution, deemed the case submitted for decision. In deciding the appeal, the appellate court initially determined whether

when the issue does not call for an examination of the probative value of evidence presented, the truth or falsehood of facts being

only questions of law are involved in the case. Eventually, the appellate court declared that an analysis of the facts of the case is

admitted and the doubt concerns the correct application of law and jurisprudence on the matter.11 On the other hand, there is a

indispensable. According to the Court of Appeals:

question of fact when the doubt or controversy arises as to the truth or falsity of the alleged facts. When there is no dispute as to fact, the question of whether or not the conclusion drawn therefrom is correct is a question of law.12

To resolve these issues, an incursion or investigation of the facts attending the case of the petitioner-appellee is indispensable. The Court must sift through the contrasting evidence submitted to determine the specific situation of appellee’s academic

Contrary to what the Court of Appeals postulates, the resolution of the issues presented by respondent UP Board of Regents does

standing, and the chronology of appellee’s scholastic progress, her grades and scholastic average, as well as what particular rules

not necessitate an incursion of the facts attending the case. Whether the lower court erred in finding that respondent gravely

were used or misused by the Respondent Board, and by the lower court, in coming up with its respective decisions. The Court is

abused its discretion in interpreting and applying the provisions of the UP Code on the case of petitioner is a question of law, the

called upon to make a calibration and resolution of all these elements, and to determine the existence and relevancy [sic] of

determination of which calls for the analysis of the proper application of law and jurisprudence. While the Court of Appeals is

specific surrounding circumstances, its relation to each other and to the whole and the probabilities of the situation.

correct in saying that in order to resolve the issues raised by the parties, the court must consider all the facts and evidence presented in the case, it does not, however, rule on the truth or falsity of such facts, based on the evidence and matters on

This is not a simple matter of determining what the [sic] law is applicable on a given or specific set of facts. Indeed, the facts itself

record. It must be stressed that the facts were admitted by both parties. Therefore, any conclusion based on these facts would not

[sic] must be determined and reviewed, before a legal adjudication could be made.

involve a calibration of the probative value of such pieces of evidence, but would be limited to an inquiry of whether the law was properly applied given the state of facts of the case.

To be sure, questions of law are attendant in the instant appeal, but to resolve the same, a review and determination of [the] facts, based on evidence and matters on record, is necessary before such issues could be resolved. The Court, therefore, as a legal

It is thus evident that the controversy centered on, and the doubt arose with respect to, the correct interpretation and application

reviewer of issues of fact and law, is competent, and legally empowered, to take cognizance of and resolve the instant appeal.8

of Rule 410 of the UP Code in relation to petitioner’s situation and not as to any fact or evidence advanced by the parties. And since the appeal brought by respondent UP Board of Regents before the Court of Appeals raises only questions of law, the proper

Having resolved the issue of jurisdiction, the Court of Appeals went on to determine whether the lower court erred in not finding

mode of appeal is by way of a petition for certiorari under Rule 45.13Therefore, the appellate court did not have jurisdiction to

that academic freedom should apply in the instant case. According to the appellate court, the RTC’s Order involved an intrusion on

take cognizance of and to resolve respondent’s appeal.

the discretion and authority of the UP Board of Regents in the matter of whether or not to confer academic honors upon the petitioner. The Court of Appeals stated that the lower court violated UP’s constitutionally protected right to academic freedom

The above conclusion, however, will not deter this Court from proceeding with the judicial determination of the basic legal issues

when it substituted its own interpretation of the internal rules and regulations of the University for that of the UP Board of

herein. We must bear in mind that procedural rules are intended to ensure the proper administration of law and justice. The rules

Regents, and applied the same to the petitioner’s case. The appellate court further made a determination that respondent is not

of procedure ought not to be applied in a very rigid, technical sense, for they are adopted to help secure, not override, substantial

guilty of grave abuse of discretion in deciding not to confer academic honors upon the petitioner, inasmuch as respondent

justice.14 A deviation from its rigid enforcement may thus be allowed to attain its prime objective, for after all, the dispensation of

proceeded fairly in reaching its decision, giving the petitioner and her parents ample opportunity to present their case.

justice is the core reason for the existence of courts.15Noting that this case involves the exercise of a fundamental right -

Accordingly, on 28 November 2003, the Court of Appeals issued a decision granting the UP Board of Regents’ appeal:

academic freedom no less - of the State University, and that the petitioner has, in any event, raised before us the legal question of whether the RTC correctly required respondent to confer cum laude honors on the petitioner because of respondent’s alleged

The Order, dated September 5, 2002 of the Regional Trial Court of Quezon City, Branch 87 is hereby SET ASIDE. In lieu thereof,

grave abuse of discretion, for pragmatic reasons and consideration of justice and equity, the Court must go on to resolve the

judgment is hereby rendered DISMISSING the petition for certiorari and mandamus filed by petitioner-appellee Nadine Rosario M.

second assignment of error.

Morales.9 As enunciated by this Court in the case of University of San Carlos v. Court of Appeals,16 the discretion of schools of learning to Claiming that the Court of Appeals committed grave and reversible errors in issuing its 28 November 2003 decision, petitioner

formulate rules and guidelines in the granting of honors for purposes of graduation forms part of academic freedom. And such

filed before this Court a Petition for Review on Certiorari, raising the following assignment of errors:10

discretion may not be disturbed much less controlled by the courts, unless there is grave abuse of discretion in its exercise. Therefore, absent any showing of grave abuse of discretion, the courts may not disturb the University’s decision not to confer

I

honors to petitioner.

The Court of Appeals had no jurisdiction over respondent’s appeal of the RTC’s Order (the CA Appeal) because the essential facts

"Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or in

here were never in dispute, this case involves purely questions of law.

other words, where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to

II

act at all in contemplation of law."17

The RTC correctly required respondent to confer cum laude honors on petitioner because respondent gravely abused its discretion

A judicious review of the records will show that the respondent proceeded fairly in evaluating petitioner’s situation, giving her and

in refusing to comply with Article 410 of the UP Code (which respondent itself issued) and in arbitrarily excluding petitioner’s

her parents ample opportunity to present their side on different occasions and before different fora, i.e., the Department of

grades in German 10 and 11 from the computation of her GWA. The Court of Appeals therefore gravely erred in reversing the

European Languages, the College of Arts and Letters, the University Council and finally, the Board of Regents. Contrary to the trial

RTC’s Order.

court’s findings, there is no showing that respondent acted arbitrarily or capriciously in interpreting Article 410 of the UP Code and consequently not conferring academic honors on petitioner.

According to the petitioner, it was erroneous for the appellate court to assume jurisdiction over respondent’s appeal of the RTC Order as said appeal involved purely questions of law, and that respondents should have challenged said Order directly with the

For clarity, Article 410 of the UP Code is again quoted hereunder:

Supreme Court through a Petition for Review on Certiorari and not before the Court of Appeals through a Notice of Appeal. The petitioner further argues that it was error for the Court of Appeals to rule that respondent’s refusal to interpret and apply Article

ART. 410. Students who complete their courses with the following absolute minimum weighted average grade shall be graduated

410 of the UP Code in order to confer cum laude honors to petitioner did not constitute grave abuse of discretion. Lastly,

with honors:

petitioner advances that the appellate court mischaracterized this case as one involving academic freedom, thus condoning respondent’s alleged injustice to petitioner.

Summa Cum Laude ……….. 1.20

Ruling of the Court

Magna Cum Laude ………… 1.45

First, we shall endeavor to dispose of the issue of jurisdiction.

Cum Laude ……………….... 1.75

Petitioner submits that this case involves only the interpretation of a rule (i.e., Article 410 of the UP Code) and the determination

Provided, that all the grades in all subjects prescribed in the curriculum, as well as subjects that qualify as electives, shall be

of whether the subjects German 10 and 11 can be considered as "qualified electives" under the assailed rule in relation to

included in the computation of the weighted average grade; provided further that in cases where the electives taken are more

petitioner’s situation. According to petitioner, the facts of the case have never been in dispute. Both petitioner and respondent

than those required in the program, the following procedure will be used in selecting the electives to be included in the

have presented the same pieces of evidence, albeit of course, their respective interpretations and positions on the legal effects of

computation of the weighted average grade:

their common evidence are different. Petitioner also points out that the total absence of questions of fact is precisely the reason why the RTC did not require, and the parties themselves did not demand, an evidentiary hearing for the case before the lower court.

(I) For students who did not shift programs, consider the required number of electives in chronological order.

(II) For students who shifted from one program to another, the electives to be considered shall be selected according to the

In deliberating on the Motion for Reconsideration submitted by petitioner, the Board of Regents, during its 1147thMeeting,

following order of priority:

reviewed the interpretation of petitioner’s curriculum. University General Counsel, Prof. Marvic Leonen, explained that the interpretation of the required subjects or allowable electives in the curriculum must be taken in the context of the entire courses.

(1) Electives taken in the program where the student is graduating will be selected in chronological order.

A student in Plan A is required to take:

(2) Electives taken in the previous program and acceptable as electives in the second program will be selected in chronological

Minor Language 12/Elective.b

order. Minor Language 13/Elective.b (3) Prescribed courses taken in the previous program, but qualify as electives in the second program will be selected in chronological order.18

Minor Language 20/Elective.b

As can be seen from the minutes of the meetings of the University Council and the Board of Regents, petitioner’s case was

Minor Language 21/Elective.b

subjected to an exhaustive and judicious deliberation. During the 68th Meeting of the University Council, where petitioner’s case was first submitted to the body for discussion on a no-name basis, a member raised the issue of whether German 10 and 11 could

Minor Language 30/Elective.b

be counted as electives in the program of petitioner, to which the University Registrar replied that the student’s program is European Languages, major in French, minor in Spanish under which German 10 and 11 are not required in the checklist; neither

Minor Language 40/Elective.b

can these subjects be considered electives as said electives should be non-language electives. Since the student chose Spanish as her minor language, German 10 and 11 are excess subjects.19 Another member argued that if the student had satisfied all the

Minor Language 31/Elective.b

requirements in the curriculum, then German 10 and 11 should be included in the computation of the GWA since the student had good grades.20 To this, Dean Josefina Agravante of the College of Arts and Letters replied that while they empathize with the

The numbered sequencing of the courses therefore clearly implies that if German 10 and 11 would be equivalent to Minor

student and her parents, this same rule had been applied in the past, and if the student would be allowed to graduate with

Language 10 and 11, then German 12, 13, 20, 21, 30, 40, 31 should have been taken by the student. The pattern would be

honors, she (Dean Agravante) will be forced to recommend the same for the other students who were denied the same request in

different if the student took up Spanish. This is so because there are no Spanish 12, 13, and 21 offered. This also explains why

the past.21 At the 1142nd Meeting of the Board of Regents, both positions of the petitioner and the University Council on the

footnote "b" that uniformly qualifies the quoted entries states:

proper interpretation of Article 410 of the UP Code were presented before the Board and an agreement was reached among the members to return petitioner’s appeal to the University Council for further consideration, with full disclosure of who is involved in the matter.

(b) Courses in English, Comparative Literature, Creative Writing, Filipino, Panitikan ng Pilipinas, Speech, Theater Arts, Art Studies, Social Science, Philosophy, Music, Fine Arts, Education, Mass Communication or Tourism. As minor discipline, these non-language electives must be taken only in one department provided that the prerequisites has/have been satisfied. For those taking Spanish

Upon the appeal’s return to the University Council, the issue of whether the University rule allows for excess electives more than

as minor, the following are recommended: Spanish 3, 20, 30, 31, 40, 60, 80, 100 and 105.35

those required by the program was raised. Prof. Cao22 answered this query by pointing to Section 2 of Article 41023 which provides for the manner of selecting which electives shall be considered. Since the rule provides for an order of priority, it is clear that not all electives taken by a student may be included in the computation of the GWA. Dean Yu,24 on the other hand, pointed out that the more basic issue is whether German 10 and 11 can be considered as electives under petitioner’s curriculum within the contemplation of the assailed rule. Dean Yu further stated that the determination of which subjects will qualify as electives is best left to the Department of European Languages and the student’s curriculum. To this issue, Prof. Bautista, Chair of the Department of European Languages, replied that this matter had been taken up again at the Department level and they stood by their decision that in the Plan A of the BA European Languages program, there is a major and a minor language. There are no free electives and for the minor language, subjects that fall under the same language were the ones counted. In the case of Ms. Morales, she initially

The first two sentences in the footnote could not refer to "minor language." The last sentence, on the other hand, could not refer to the entry "elective." There is nothing in the footnote that could be read to imply that the "electives" could be language courses other than those enumerated in the footnote’s first sentence. Petitioner argues that German 10 and 11 should be appreciated as the minor languages 10 and 11 required. And that the Spanish subjects should be taken as the "elective" subjects in the curriculum. The difficulty with this position is that the description of "elective" is very clear and leaves no further room for interpretation. For purposes of graduation and for honors, petitioner has to abide by the requirements of the curriculum. Petitioner’s decision to shift her minor language caused the exclusion of her grades in German 10 and 11 in the computation of her GWA.

thought that she would minor in German so she took German 10 and 11 during her first semester in UP Diliman, but eventually, she changed her minor to Spanish. He said that the Advising Committee of the Department allows a student to change his major or minor, but courses which had been previously taken before the shifting of major or minor are not counted as part of the courses with credit in the curriculum. As to the interpretation of the rules, Dean Tabunda25 said that it is a matter of course that the traditional interpretation of the Department be taken. And the Department made it clear that a free elective is different from

It must be stressed that it is the policy of the University to thoroughly evaluate all candidates for graduation with honors to ensure that students do not earn extra credits in order to increase their GWA. A perusal of petitioner’s official transcript of records36 will show that the subjects German 10 and 11 are in excess of the requirements of the program (i.e., 141 units, 27 of which are electives in the minor field of study), to illustrate:

a course taken as a minor. With respect to the question of what interpretation should prevail, she (Dean Tabunda) believed that

Subjects

the traditional interpretation must be taken into account.26

Number of Units Earned

In trying to get into the heart of the issue, the Board of Regents, at its 1144th Meeting, went into an examination of Rule 410.27 Regent Hernandez28 considers the rule as referring to the computation of the GWA, not only with respect to the subjects

General Education Subjects (i.e. common subjects for BA 69 programs and required subjects under the BA European Languages program)

prescribed in the curriculum, but also takes into account all subjects that qualify as electives. Thus, those electives may not only be part of the Plan A curriculum but are part of the program. On the contrary, Vice President Diokno29 said that the understanding of the Department and the University Council is that subjects that qualify as electives must be in the curriculum. Otherwise, the student can take anything they want. Vice President Diokno stated further that in cases where there are free electives, the

French (major)

45

Spanish (minor)

27

electives are applied chronologically. Moreover, the Plan A curriculum, incidentally, does not allow free electives, therefore, there was nothing to put in chronologically. This has always been the practice of the Department which is being supported by the College Assembly and the University Council.30

German

Further discussing the matter, Regent Hernandez requested for an interpretation of Article 41031 on the issue of whether or not

6

the German subjects which are supposedly electives should be included in the computation of the petitioner’s GWA. Atty.

Total Units

Azura,32 University General Counsel, explained that the words "subjects that qualify as electives" must be read in conjunction

147

with the immediately preceding qualifying phrase "in the curriculum." Where the first conjunctive part contains the descriptive phrase/modifier "in the curriculum," so too must the second conjunctive part be subject to the same modifier. Thus, "subjects that

The fact that the UP Board of Regents chose to accept the interpretation of Article 410 of the UP Code as construed by the

qualify as electives" is modified by the words "in the curriculum." In other words, in the computation of the GWA, the grades of

University Council based on its time-honored interpretation and application of said rule, after the latter has deliberated on the

subjects prescribed in the curriculum and the grades of subjects that qualify as electives in the curriculum are included. Seen in

matter twice, vis-à-vis petitioner’s interpretation, is not tantamount to a whimsical exercise of judgment on the part of the

this light, the view that German 10 and 11 must be considered in the computation of petitioner’s GWA, being electives in the

respondent. It is not grave abuse of discretion on the part of the UP Board of Regents to uphold the decisions of the Department

European Languages undergraduate program, is incorrect. The word program in Article 41033 must be interpreted in the context

of European Languages, the College of Arts and Letters and the University Council, when said decisions were reached after a

of a particular curriculum. A student fulfills the requirements of a program by following a certain curriculum. Atty. Azura said that

thorough discussion of the merits of petitioner’s case in relation to the established interpretation and analysis of its very own

the University Council, in excluding German 10 and 11 from the computation of petitioner’s GWA, effectively ruled that these

internal rules.

subjects do not qualify as electives in the course curriculum for a degree in BA European Languages, major in French, minor in Spanish.34

In the case of University of the Philippines v. Ayson,37 UP has been likened to an administrative agency whose findings must be accorded respect within its areas of competence. Well-settled is the principle that by reason of the special knowledge and expertise of administrative agencies over matters falling under their jurisdiction, they are in a better position to pass judgment thereon; thus, their findings of fact in that regard are generally accorded great respect, if not finality, by the courts.38 Accordingly, the conclusion arrived at by the UP Board of Regents that petitioner’s grades in German 10 and 11 should not be included in computing her GWA must be respected and given finality, the interpretation and application of Article 410 of the UP Code being within the competence and expertise of the Department of European Languages, the College of Arts and Letters and the University Council to make.

Therefore, it was error on the part of the lower court to rule that respondent’s discretion has been gravely abused, thus justifying the substitution of judicial discretion in the interpretation of Article 410 of the UP Code. The decision of the lower court in substituting its own interpretation of the University’s internal rules for that of the respondent UP Board of Regents, is an intrusion into the constitutionally protected right of the University to academic freedom.

Sec. 5 (2), Article XIV of the Constitution provides that "[a]cademic freedom shall be enjoyed in all institutions of higher learning." Academic freedom accords an institution of higher learning the right to decide for itself its aims and objectives and how best to attain them. This constitutional provision is not to be construed in a niggardly manner or in a grudging fashion.39 Certainly, the wide sphere of autonomy given to universities in the exercise of academic freedom extends to the right to confer academic honors. Thus, exercise of academic freedom grants the University the exclusive discretion to determine to whom among its graduates it shall confer academic recognition, based on its established standards. And the courts may not interfere with such exercise of discretion unless there is a clear showing that the University has arbitrarily and capriciously exercised its judgment. Unlike the UP Board of Regents that has the competence and expertise in granting honors to graduating students of the University, courts do not have the competence to constitute themselves as an Honor’s Committee and substitute their judgment for that of the University officials.

Therefore, for failure to establish that the respondent committed grave abuse of discretion in not conferring cum laude honors to petitioner, the lower court erred in mandating that petitioner’s grades be re-computed including her marks in German 10 and 11 and to confer upon petitioner academic honors.

WHEREFORE, the petition is DENIED. The Decision of the UP Board of Regents on 31 August 2000 denying the appeal of the petitioner is AFFIRMED. The Order of the Regional Trial Court dated 05 September 2002 is REVERSED and SET ASIDE. No costs.

SO ORDERED.

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

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-40779 November 28, 1975 EPICHARIS T. GARCIA, petitioner, vs. THE FACULTY ADMISSION COMMITTEE, LOYOLA SCHOOL OF THEOLOGY, herein represented by FR. ANTONIO B. LAMBINO, respondent. Epicharis T Garcia in her own behalf. Bengzon, Villegas, Zarraga, Narciso and Cudala for respondents.

FERNANDO, J.: The specific issue posed by this mandamus proceeding to compel the Faculty Admission Committee of the Loyola School of Theology, represented by Father Antonio B. Lambino, to allow petitioner Epicharis T. Garcia, to continue studying therein is whether she is deemed possessed of such a right that has to be respected. That is denied not only on general principle, but also in view of the character of the particular educational institution involved. It is a seminary. It would appear therefore that at most she can lay claim to a privilege, no duty being cast on respondent school. Moreover, as a reinforcement to such an obvious conclusion, there is the autonomy recognized by the Constitution in this explicit language: "All institutions of higher learning shall enjoy academic freedom."1 The petition must therefore fail. Petitioner alleged: "3. That in summer, 1975, Respondent admitted Petitioner for studies leading to an M.A. in Theology; 4. That on May 30, 1975, when Petitioner wanted to enroll for the same course for the first semester, 1975-76, Respondent told her about the letter he had written her, informing her of the faculty's decision to bar her from re-admission in their school; 5. That the reasons stated in said letter, dated May 19, 1975 ... do not constitute valid legal ground for expulsion, for they neither present any violation of any of the school's regulation, nor are they indicative of gross misconduct; 6. That from June 25, 1975, Petitioner spent much time and effort in said school for the purpose of arriving at a compromise that would not duly inconvenience the professors and still allow her to enjoy the benefits of the kind of instruction that the school has to offer, but all in vain; she was in fact told by Fr. Pedro Sevilla, the school's Director, that the compromises she was offering were unacceptable, their decision was final, and that it were better for her to seek for admission at the UST Graduate School; 7 Petitioner then subsequently made inquiries in said school, as to the possibilities for her pursuing her graduate studies for an for M.A. in Theology, and she was informed that she could enroll at the UST Ecclesiastical Faculties, but that she would have to fulfill their requirements for Baccalaureate in Philosophy in order to have her degree later in Theology — which would entail about four to five years more of studies — whereas in the Loyola School of Studies to which she is being unlawfully refused readmission, it would entail only about two years more; 8. That Petitioner, considering that time was of the essence in her case, and not wanting to be deprived of an opportunity for gaining knowledge necessary for her life's work, enrolled as a special student at said UST Ecclesiastical Faculties, even if she would not thereby be credited with any academic units for the subject she would take; 9. That Petitioner could have recourse neither to the President of her school, Fr. Jose Cruz, he being with the First Couple's entourage now in Red China, nor with the Secretary of Education, since this is his busiest time of the year, and June 11, 1975 is the last day for registration; ... "2 She prayed for a writ of mandamus for the purpose of allowing her to enroll in the current semester. She made it more specific in a pleading she called Amended Petition so that she would be allowed cross-enrollment even beyond the June 11, 1975 deadline for registration and that whatever units may be accredited to her in the UST Ecclesiastical Faculties be likewise recognized by respondent. Her petition included the letter of respondent Father Lambino which started on a happy note that she was given the grade of B+ and B in two theology subjects, but ended in a manner far from satisfactory for her, as shown by this portion thereof: "Now, you will have to forgive me for going into a matter which is not too pleasant. The faculty had a meeting after the summer session and several members are strongly opposed to having you back with us at Loyola School of Theology. In the spirit of honesty may I report this to you as their reason: They felt that your frequent questions and difficulties were not always pertinent and had the effect of slowing down the progress of the class; they felt you could have tried to give the presentation a chance and exerted more effort to understand the point made before immediately thinking of difficulties and problems. The way things are, I would say that the advisability of your completing a program (with all the course work and thesis writing) with us is very questionable. That you have the requisite intellectual ability is not to be doubted. But it would seem to be in your best interests to work with a faculty that is more compatible with your orientation. I regret to have to make this report, but I am only thinking of your welfare."3

This Court, in a resolution of June 23, 1975, required comment on the part of respondent Faculty Admission Committee, Loyola School of Theology.4 As submitted on behalf of Father Lambino, it set forth the following: "Respondent is the Chairman of the Faculty Admission Committee of the Loyola School of Theology, which is a religious seminary situated in Loyola Heights, Quezon City; In collaboration with the Ateneo de Manila University, the Loyola School of Theology allows some lay students to attend its classes and/or take courses in said Loyola School of Theology but the degree, if any, to be obtained from such courses is granted by the Ateneo de Manila University and not by the Loyola School of Theology; For the reason above given, lay students admitted to the Loyola School of Theology to take up courses for credit therein have to be officially admitted by the Assistant Dean of the Graduate School of the Ateneo de Manila University in order for them to be considered as admitted to a degree program; Petitioner in the summer of 1975 was admitted by respondent to take some courses for credit but said admission was not an admission to a degree program because only the Assistant Dean of the Ateneo de Manila Graduate School can make such admission; That in the case of petitioner, no acceptance by the Assistant Dean of the Ateneo de Manila Graduate School was given, so that she was not accepted to a degree program but was merely allowed to take some courses for credit during the summer of 1975; Furthermore, petitioner was not charged a single centavo by the Loyola School of Theology and/or the Ateneo de Manila University in connection with the courses she took in the summer of 1975, as she was allowed to take it free of charge; That respondent Fr. Antonio B. Lambino, S.J., and/or the Loyola School of Theology thru its Faculty Admission Committee, necessarily has discretion as to whether to admit and/or to continue admitting in the said school any particular student, considering not only academic or intellectual standards but also other considerations such as personality traits and character orientation in relation with other students as well as considering the nature of Loyola School of Theology as a seminary. The Petition for Mandamus therefore does not lie, as there is no duty, much less a clear duty, on the part of respondent to admit the petitioner therein in the current year to take up further courses in the Loyola School of Theology."5 It was likewise alleged in the aforesaid comment that as set forth in the letter of May 19, 1975, the decision not to allow petitioner to take up further courses in said seminary "is not arbitrary, as it is based on reasonable grounds, ... ."6 Then reference was made to the availability of non-judicial remedies which petitioner could have pursued.7 The prayer was for the dismissal of the petition for lack of merit. Petitioner sought permission to reply and it was granted. Thereafter, she had a detailed recital of why under the circumstances she is entitled to relief from the courts. In a resolution of August 8, 1975, this Court considered the comment of respondent as answer and required the parties to file their respective memoranda. That they did, and the petition was deemed submitted for decision. As was made clear at the outset, we do not see merit in it. It must therefore be dismissed. 1. In respondent's memorandum, it was made clear why a petition for mandamus is not the proper remedy. Thus: "Petitioner cannot compel by mandamus, the respondent to admit her into further studies in the Loyola School of Theology. For respondent has no clear duty to so admit the petitioner. The Loyola School of Theology is a seminary for the priesthood. Petitioner is admittedly and obviously not studying for the priesthood, she being a lay person and a woman. And even assuming ex gratia argumenti that she is qualified to study for the priesthood, there is still no duty on the part of respondent to admit her to said studies, since the school has clearly the discretion to turn down even qualified applicants due to limitations of space, facilities, professors and optimum classroom size and component considerations."8 No authorities were cited, respondent apparently being of the view that the law has not reached the stage where the matter of admission to an institution of higher learning rests on the sole and uncontrolled discretion of the applicant. There are standards that must be met. There are policies to be pursued. Discretion appears to be of the essence. In terms of Hohfeld's terminology, what a student in the position of petitioner possesses is a privilege rather than a right. She cannot therefore satisfy the prime and indispensable requisite of a mandamus proceeding. Such being the case, there is no duty imposed on the Loyola School of Theology. In a rather comprehensive memorandum of petitioner, who unfortunately did not have counsel, an attempt was made to dispute the contention of respondent. There was a labored effort to sustain her stand, but it was not sufficiently persuasive. It is understandable why. It was the skill of a lay person rather than a practitioner that was evident. While she pressed her points with vigor, she was unable to demonstrate the existence of the clear legal right that must exist to justify the grant of this writ. 2. Nor is this all. There is, as previously noted, the recognition in the Constitution of institutions of higher learning enjoying academic freedom. It is more often identified with the right of a faculty member to pursue his studies in his particular specialty and thereafter to make known or publish the result of his endeavors without fear that retribution would be visited on him in the event that his conclusions are found distasteful or objectionable to the powers that be, whether in the political, economic, or academic establishments. For the sociologist, Robert McIver it is "a right claimed by the accredited educator, as teacher and as investigator, to interpret his findings and to communicate his conclusions without being subjected to any interference,

molestation, or penalization because these conclusions are unacceptable to some constituted authority within or beyond the institution." 9 As for the educator and philosopher Sidney Hook, this is his version: "What is academic freedom? Briefly put, it is the freedom of professionally qualified persons to inquire, discover, publish and teach the truth as they see it in the field of their competence. It is subject to no control or authority except the control or authority of the rational methods by which truths or conclusions are sought and established in these disciplines." 10 3. That is only one aspect though. Such a view does not comprehend fully the scope of academic freedom recognized by the Constitution. For it is to be noted that the reference is to the "institutions of higher learning" as the recipients of this boon. It would follow then that the school or college itself is possessed of such a right. It decides for itself its aims and objectives and how best to attain them. It is free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of students. This constitutional provision is not to be construed in a niggardly manner or in a gradging fashion. That would be to frustrate its purpose, nullify its intent. Former President Vicente G. Sinco of the University of the Philippines, in his Philippine Political Law, is similarly of the view that it "definitely grants the right of academic freedom to the university as an institution as distinguished from the academic freedom of a university professor." 11 He cited the following from Dr. Marcel Bouchard, Rector of the University of Dijon, France, President of the conference of rectors and vice-chancellors of European universities: " "It is a well-established fact, and yet one which sometimes tends to be obscured in discussions of the problems of freedom, that the collective liberty of an organization is by no means the same thing as the freedom of the individual members within it; in fact, the two kinds of freedom are not even necessarily connected. In considering the problems of academic freedom one must distinguish, therefore, between the autonomy of the university, as a corporate body, and the freedom of the individual university teacher." " 12 Also: "To clarify further the distinction between the freedom of the university and that of the individual scholar, he says: "The personal aspect of freedom consists in the right of each university teacher — recognized and effectively guaranteed by society — to seek and express the truth as he personally sees it, both in his academic work and in his capacity as a private citizen. Thus the status of the individual university teacher is at least as important, in considering academic freedom, as the status of the institutions to which they belong and through which they disseminate their learning."' 13 He likewise quoted from the President of the Queen's University in Belfast, Sir Eric Ashby: "'The internal conditions for academic freedom in a university are that the academic staff should have de facto control of the following functions: (i) the admission and examination of students; (ii) the curricula for courses of study; (iii) the appointment and tenure of office of academic staff; and (iv) the allocation of income among the different categories of expenditure. It would be a poor prospect for academic freedom if universities had to rely on the literal interpretation of their constitutions in order to acquire for their academic members control of these four functions, for in one constitution or another most of these functions are laid on the shoulders of the law governing body .'" 14 Justice Frankfurter, with his extensive background in legal education as a former Professor of the Harvard Law School, referred to what he called the business of a university and the four essential freedoms in the following language: "It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail "the four essential freedoms" of a university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." 15 Thus is reinforced the conclusion reached by us that mandamus does not lie in this case. 4. It is not an easy matter then to disregard the views of persons knowledgeable in the field, to whom cannot be imputed lack of awareness of the need to respect freedom of thought on the part of students and scholars. Moreover, it could amount to minimizing the full respect that must be accorded the academic freedom expressly granted by the Constitution "to institutions of higher learning." It is equally difficult to yield conformity to the approach taken that colleges and universities should be looked upon as public utilities devoid of any discretion as to whom to admit or reject. Education, especially higher education, belongs to a different, and certainly higher, category. 5. It only remains to be added that the futility that marked the persistence of petitioner to continue her studies in the Loyola School of Theology is the result solely of a legal appraisal of the situation before us. The decision is not to be construed as in any way reflecting on the scholastic standing of petitioner. There was on the part of respondent due acknowledgment of her intelligence. Nonetheless, for reasons explained in the letter of Father Lambino, it was deemed best, considering the interest of the school as well as of the other students and her own welfare, that she continue her graduate work elsewhere. There was nothing arbitrary in such appraisal of the circumstances deemed relevant. It could be that on more mature reflection, even petitioner would realize that her transfer to some other institution would redound to the benefit of all concerned. At any rate, as indicated earlier, only the legal aspect of the controversy was touched upon in this decision.

WHEREFORE, the petition is dismissed for lack of merit. Makalintal, C.J., Barredo, Antonio, Esguerra, Muñoz Palma, Aquino, Concepcion, Jr. and Martin, JJ., concur. Castro, J., took no part.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 127980 December 19, 2007 DE LA SALLE UNIVERSITY, INC., EMMANUEL SALES, RONALD HOLMES, JUDE DELA TORRE, AMPARO RIO, CARMELITA QUEBENGCO, AGNES YUHICO and JAMES YAP, petitioners, vs. THE 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., respondents. DECISION

Came March 29, 1995 and the following events. Ten minutes before his next class at 6:00 p.m., Mr. James Yap went out of the campus using the Engineering Gate to buy candies across Taft Avenue. As he was about to re-cross Taft Avenue, he heard heavy footsteps at his back. Eight to ten guys were running towards him. He panicked. He did not know what to do. Then, respondent Bungubung punched him in the head with something heavy in his hands – "parang knuckles." Respondents Reverente and Lee were behind Yap, punching him. Respondents Bungubung and Valdes who were in front of him, were also punching him. As he was lying on the street, respondent Aguilar kicked him. People shouted; guards arrived; and the group of attackers left. Mr. Yap could not recognize the other members of the group who attacked him. With respect to respondent Papio, Mr. Yap said "hindi ko nakita ang mukha niya, hindi ko nakita sumuntok siya." What Mr. Yap saw was a long haired guy also running with the group.

REYES, R.T., J.: NAGTATAGIS sa kasong ito ang karapatang mag-aral ng apat na estudyante na nasangkot sa away ng dalawang fraternity at ang karapatang akademiko ng isang pamantasan. 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)1 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. This is the backdrop of the controversy before Us pitting private respondents' right to education vis-a-vis the University's right to academic freedom. ASSAILED in this Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the Rules of Court are the following: (1) Resolution of the Court of Appeals (CA) dated July 30, 1996 dismissing DLSU's petition for certiorariagainst respondent Judge and private respondents Aguilar, Bungubung, Reverente, and Valdes, Jr.;2 (2) Resolution of the CA dated October 15, 1996 denying the motion for reconsideration;3 (3) Order dated January 7, 1997 of the Regional Trial Court (RTC), Branch 36 Manila granting private respondent Aguilar's motion to reiterate writ of preliminary injunction;4 and (4) Resolution No. 181-96 dated May 14, 1996 of the Commission on Higher Education (CHED) exonerating private respondent Aguilar and lowering the penalties for the other private respondents from expulsion to exclusion.5 Factual Antecedents Gleaned from the May 3, 1995 Decision of the DLSU-CSB Joint Discipline Board, two violent incidents on March 29, 1995 involving private respondents occurred: x x x From the testimonies of the complaining witnesses, it appears that one week prior to March 29, 1995, Mr. James Yap was eating his dinner alone in Manang's Restaurant near La Salle, when he overheard two men bad-mouthing and apparently angry at Domino Lux. He ignored the comments of the two. When he arrived at his boarding house, he mentioned the remarks to his two other brods while watching television. These two brods had earlier finished eating their dinner at Manang's. Then, the three, together with four other persons went back to Manang's and confronted the two who were still in the restaurant. By admission of respondent Bungubung in his testimony, one of the two was a member of the Tau Gamma Phi Fraternity. There was no rumble or physical violence then. After this incident, a meeting was conducted between the two heads of the fraternity through the intercession of the Student Council. The Tau Gamma Phi Fraternity was asking for an apology. "Kailangan ng apology" in the words of respondent Aguilar. But no apology was made. Then, 5 members of the Tau Gamma Phi Fraternity went to the tambayan of the Domino Lux Fraternity in the campus. Among them were respondents Bungubung, Reverente and Papio. They were looking for a person whose description matched James Yap. According to them, this person supposedly "nambastos ng brod." As they could not find Mr. Yap, one of them remarked "Paano ba iyan. Pasensiya na lang."

Two guards escorted Mr. Yap inside the campus. At this point, Mr. Dennis Pascual was at the Engineering Gate. Mr. Pascual accompanied Yap to the university clinic; reported the incident to the Discipline Office; and informed his fraternity brods at their tambayan. According to Mr. Pascual, their head of the Domino Lux Fraternity said: "Walang gagalaw. Uwian na lang." Mr. Ericson Cano, who was supposed to hitch a ride with Dennis Pascual, saw him under the clock in Miguel Building. However, they did not proceed directly for home. With a certain Michael Perez, they went towards the direction of Dagonoy Street because Mr. Pascual was supposed to pick up a book for his friend from another friend who lives somewhere in the area. As they were along Dagonoy Street, and before they could pass the Kolehiyo ng Malate Restaurant, Mr. Cano first saw several guys inside the restaurant. He said not to mind them and just keep on walking. However, the group got out of the restaurant, among them respondents Reverente, Lee and Valdes. Mr. Cano told Mr. Lee: "Ayaw namin ng gulo." But, respondent Lee hit Mr. Cano without provocation. Respondent Reverente kicked Mr. Pascual and respondent Lee also hit Mr. Pascual. Mr. Cano and Mr. Perez managed to run from the mauling and they were chased by respondent Lee and two others. Mr. Pascual was left behind. After respondent Reverente first kicked him, Mr. Pascual was ganged-upon by the rest. He was able to run, but the group was able to catch up with him. His shirt was torn and he was hit at the back of his head with a lead pipe. Respondent Lee who was chasing Cano and Perez, then returned to Mr. Pascual. Mr. Pascual identified respondents Reverente and Lee, as among those who hit him. Although Mr. Pascual did not see respondent Valdes hit him, he identified respondent Valdez (sic) as also one of the members of the group. In fact, Mr. Cano saw respondent Valdes near Mr. Pascual. He was almost near the corner of Leon Guinto and Estrada; while respondent Pascual who managed to run was stopped at the end of Dagonoy along Leon Guinto. Respondent Valdes shouted: "Mga putang-ina niyo." Respondent Reverente hit Mr. Pascual for the last time. Apparently being satisfied with their handiwork, the group left. The victims, Cano, Perez and Pascual proceeded to a friend's house and waited for almost two hours, or at around 8:00 in the evening before they returned to the campus to have their wounds treated. Apparently, there were three cars roaming the vicinity.6 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 complaint7 with the Discipline Board of DLSU charging private respondents with "direct assault." Similar complaints8 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 (ABMGT/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 informing them of the complaints and requiring them to answer. Private respondents filed their respective answers.9 As it appeared that students from DLSU and CSB10 were involved in the mauling incidents, a joint DLSU-CSB Discipline Board11 was formed to investigate the incidents. Thus, petitioner Board Chairman Emmanuel Sales sent notices of hearing12 to private respondents on April 12, 1995. Said notices 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. On or before April 18, 1995, you are further directed to provide the Board, through the Discipline Office, with a list of your witnesses as well as the sworn statement of their proposed testimony. Your failure to appear at the scheduled hearing or your failure to submit the list of witnesses and the sworn statement of their proposed testimony will be considered a waiver on your part to present evidence and as an admission of the principal act complained of. For your strict compliance.13 During the proceedings before the Board on April 19 and 28, 1995, private respondents interposed the common defense of alibi, summarized by the DLSU-CSB Joint Discipline Board as follows: First, in the case of respondent Bungubung, March 29, 1995 was one of the few instances when he was picked-up by a driver, a certain Romeo S. Carillo. Most of the time, respondent Bungubung goes home alone sans driver. But on this particular date, respondent Bungubung said that his dad asked his permission to use the car and thus, his dad instructed this driver Carillo to pick-up his son. Mr. Carillo is not a family driver, but works from 8:00 a.m. to 5:00 p.m. for the Philippine Ports Authority where the elder Bungubung is also employed. Thus, attempting to corroborate the alibi of respondent Bungubung, Mr. Carillo said that he arrived at La Salle at 4:56 p.m.; picked-up respondent at 5:02 p.m.; took the Roxas Blvd. route towards respondent's house in BF Parañaque (on a Wednesday in Baclaran); and arrived at the house at 6:15 p.m. Respondent Bungubung was dropped-off in his house, and taking the same route back, Mr. Carillo arrived at the South Harbor at 6:55 p.m. the Philippine Ports Authority is located at the South Harbor.14 xxxx Secondly, respondent Valdes said that he was with his friends at McDonald's Taft just before 6:00 p.m. of March 29, 1995. He said that he left McDonald at 5:50 p.m. together to get some medicine at the university clinic for his throat irritation. He said that he was at the clinic at 5:52 p.m. and went back to McDonald, all within a span of 3 or even 4 minutes. Two witnesses, a certain Sharon Sia and the girlfriend of respondent Valdes, a certain Jorgette Aquino, attempted to corroborate Valdez' alibi.15 xxxx

Third, respondent Reverente told that (sic) the Board that he was at his home at 5:00 p.m. of March 29, 1995. He said that he was given the responsibility to be the paymaster of the construction workers who were doing some works in the apartment of his parents. Although he had classes in the evening, the workers according to him would wait for him sometimes up to 9:00 p.m. when he arrives from his classes. The workers get paid everyday. Respondent Reverente submitted an affidavit, unsigned by the workers listed there, supposedly attesting to the fact that he paid the workers at the date and time in question.16 xxxx Fourth, respondent Aguilar "solemnly sw[ore] that [he] left DLSU at 5:00 p.m. for Camp Crame for a meeting with some of the officers that we were preparing."17 On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution18 finding private respondents guilty. They were meted the supreme penalty of automatic expulsion,19 pursuant to CHED Order No. 4.20 The dispositive part of the resolution reads: WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN AGUILAR (AB-BSM/9152105), JAMES PAUL BUNGUBUNG (ABPSM/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. SO ORDERED.21 Private respondents separately moved for reconsideration22 before the Office of the Senior Vice-President for Internal Operations of DLSU. The motions were all denied in a Letter-Resolution23 dated June 1, 1995. On June 5, 1995, private respondent Aguilar filed with the RTC, Manila, against petitioners a petition for certiorariand injunction under Rule 65 of the Rules of Court with prayer for temporary restraining order (TRO) and/or writ of preliminary injunction. It was docketed as Civil Case No. 95-74122 and assigned to respondent Judge of Branch 36. The petition essentially sought to annul the May 3, 1995 Resolution of the DLSU-CSB Joint Discipline Board and the June 1, 1995 LetterResolution of the Office of the Senior Vice-President for Internal Affairs. The following day, June 6, 1995, respondent Judge issued a TRO24 directing DLSU, its subordinates, agents, representatives and/or other persons acting for and in its behalf to refrain and desist from implementing Resolution dated May 3, 1995 and LetterResolution dated June 1, 1995 and to immediately desist from barring the enrollment of Aguilar for the second term of school year (SY) 1995. Subsequently, private respondent Aguilar filed an ex parte motion to amend his petition to correct an allegation in paragraph 3.2125 of his original petition. Respondent Judge amended the TRO26 to conform to the correction made in the amended petition.27 On June 7, 1995, the CHED directed DLSU to furnish it with copies of the case records of Discipline Case No. 9495-3-25121,28 in view of the authority granted to it under Section 77(c) of the Manual of Regulations for Private Schools (MRPS). On the other hand, private respondents Bungubung and Reverente, and later, Valdes, filed petitions-in-intervention29 in Civil Case No. 95-74122. Respondent Judge also issued corresponding temporary restraining orders to compel petitioner DLSU to admit said private respondents. On June 19, 1995, petitioner Sales filed a motion to dismiss30 in behalf of all petitioners, except James Yap. On June 20, 1995, petitioners filed a supplemental motion to dismiss31 the petitions-in-intervention.

On September 20, 1995, respondent Judge issued an Order32 denying petitioners' (respondents there) motion to dismiss and its supplement, and granted private respondents' (petitioners there) prayer for a writ of preliminary injunction. The pertinent part of the Order reads: For this purpose, respondent, its agents, representatives or any and all other persons acting for and in its behalf is/are restrained and enjoined from – 1. Implementing and enforcing the Resolution dated May 3, 1995 ordering the automatic expulsion of petitioner and the petitioners-in-intervention from the De La Salle University and the letter-resolution dated June 1, 1995, affirming the Resolution dated May 3, 1995; and 2. Barring the enrolment of petitioner and petitioners-inintervention in the courses offered at respondent De La Salle University and to immediately allow them to enroll and complete their respective courses/degrees until their graduation thereat in accordance with the standards set by the latter. WHEREFORE, the ancillary remedy prayed for is granted. Respondent, its agents, representatives, or any and all persons acting for and its behalf are hereby restrained and enjoyed from: 1. Implementing and enforcing the Resolution dated May 3, 1995 ordering the automatic expulsion of petitioner and petitioners-in-intervention and the Letter-Resolution dated June 1, 1995; and 2. Barring the enrollment of petitioner and petitioners-inintervention in the courses offered at respondent (De La Salle University) and to forthwith allow all said petitioner and petitioners-in-intervention to enroll and complete their respective courses/degrees until their graduation thereat. The Writ of Preliminary Injunction shall take effect upon petitioner and petitioners-in-intervention posting an injunctive bond in the amount of P15,000.00 executed in favor of respondent to the effect that petitioner and petitioners-in-intervention will pay to respondent all damages that the latter may suffer by reason of the injunction if the Court will finally decide that petitioner and petitioners-in-intervention are not entitled thereto. The motion to dismiss and the supplement thereto is denied for lack of merit. Respondents are directed to file their Answer to the Petition not later than fifteen (15) days from receipt thereof.

On October 16, 1995, petitioner DLSU filed with the CA a petition for certiorari37 (CAG.R. SP No. 38719) with prayer for a TRO and/or writ of preliminary injunction to enjoin the enforcement of respondent Judge's September 20, 1995 Order and writ of preliminary injunction dated September 25, 1995. On April 12, 1996, the CA granted petitioners' prayer for preliminary injunction. On May 14, 1996, the CHED issued its questioned Resolution No. 181-96, summarily disapproving the penalty of expulsion for all private respondents. As for Aguilar, he was to be reinstated, while other private respondents were to be excluded.38 The Resolution states: RESOLUTION 181-96 RESOLVED THAT THE REQUEST OF THE DE LA SALLE UNIVERSITY (DLSU), TAFT AVENUE, MANILA FOR THE APPROVAL OF THE PENALTY OF EXPULSION IMPOSED ON MR. ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, ROBERT R. VALDES, JR., ALVIN LEE AND RICHARD V. REVERENTE BE, AS IT IS HEREBY IS, DISAPPROVED. RESOLVED FURTHER, THAT THE COMMISSION DIRECT THE DLSU TO IMMEDIATELY EFFECT THE REINSTATEMENT OF MR. AGUILAR AND THE LOWERING OF THE PENALTY OF MR. JAMES PAUL BUNGUBUNG, MR. ROBER R. VALDEZ, JR., (sic) MR. ALVIN LEE AND MR. RICHARD V. REVERENTE FROM EXPULSION TO EXCLUSION.39 Despite the directive of CHED, petitioner DLSU again prevented private respondent Aguilar from enrolling and/or attending his classes, prompting his lawyer to write several demand letters40 to petitioner DLSU. In view of the refusal of petitioner DLSU to enroll private respondent Aguilar, CHED wrote a letter dated June 26, 1996 addressed to petitioner Quebengco requesting that private respondent Aguilar be allowed to continue attending his classes pending the resolution of its motion for reconsideration of Resolution No. 181-96. However, petitioner Quebengco refused to do so, prompting CHED to promulgate an Order dated September 23, 1996 which states: Acting on the above-mentioned request of Mr. Aguilar through counsel enjoining De La Salle University (DLSU) to comply with CHED Resolution 181-96 (Re: Expulsion Case of Alvin Aguilar, et al. v. DLSU) directing DLSU to reinstate Mr. Aguilar and finding the urgent request as meritorious, there being no other plain and speedy remedy available, considering the set deadline for enrollment this current TRIMESTER, and in order to prevent further prejudice to his rights as a student of the institution, DLSU, through the proper school authorities, is hereby directed to allow Mr. Alvin Aguilar to provisionally enroll, pending the Commission's Resolution of the instant Motion for Reconsideration filed by DLSU. SO ORDERED.41

SO

ORDERED.33

Despite the said order, private respondent Aguilar was refused enrollment by petitioner DLSU when he attempted to enroll on September 22, 1995 for the second term of SY 1995-1996. Thus, on September 25, 1995, Aguilar filed with respondent Judge an urgent motion to cite petitioners (respondents there) in contempt of court.34 Aguilar also prayed that petitioners be compelled to enroll him at DLSU in accordance with respondent Judge's Order dated September 20, 1995. On September 25, 1995, respondent Judge issued35 a writ of preliminary injunction, the relevant portion of which reads: IT IS HEREBY ORDERED by the undersigned of the REGIONAL TRIAL COURT OF MANILA that until further orders, you the said DE LA SALLE University as well as your subordinates, agents, representatives, employees and any other person assisting or acting for or on your behalf, to immediately desist from implementing the Resolution dated May 3, 1995 ordering the automatic expulsion of petitioner and the intervenors in DLSU, and the letter-resolution dated June 1, 1995 affirming the said Resolution of May 3, 1995 and to immediately desist from barring the enrolment of petitioner and intervenors in the courses offered at DLSU and to allow them to enroll and complete their degree courses until their graduation from said school.36

Notwithstanding the said directive, petitioner DLSU, through petitioner Quebengco, still refused to allow private respondent Aguilar to enroll. Thus, private respondent Aguilar's counsel wrote another demand letter to petitioner DLSU.42 Meanwhile, on June 3, 1996, private respondent Aguilar, using CHED Resolution No. 181-96, filed a motion to dismiss43 in the CA, arguing that CHED Resolution No. 181-96 rendered the CA case moot and academic. On July 30, 1996, the CA issued its questioned resolution granting the motion to dismiss of private respondent Aguilar, disposing thus: THE FOREGOING CONSIDERED, dismissal of herein petition is hereby directed. SO ORDERED.44 On October 15, 1996, the CA issued its resolution denying petitioners' motion for reconsideration, as follows:

2.b Can petitioner DLSU invoke its right to academic freedom?

It is obvious to Us that CHED Resolution No. 181-96 is immediately executory in character, the pendency of a Motion for Reconsideration notwithstanding.

2.c Was the guilt of private respondents proven by substantial evidence?

After considering the Opposition and for lack of merit, the Motion for Reconsideration is hereby denied.

3. Whether or not the penalty imposed by DLSU on private respondents is proportionate to their misdeed.

SO ORDERED.45 Our Ruling On October 28, 1996, petitioners requested transfer of case records to the Department of Education, Culture and Sports (DECS) from the CHED.46 Petitioners claimed that it is the DECS, not CHED, which has jurisdiction over expulsion cases, thus, necessitating the transfer of the case records of Discipline Case No. 9495-3-25121 to the DECS. On November 4, 1996, in view of the dismissal of the petition for certiorari in CA-G.R. SP No. 38719 and the automatic lifting of the writ of preliminary injunction, private respondent Aguilar filed an urgent motion to reiterate writ of preliminary injunction dated September 25, 1995 before respondent RTC Judge of Manila.47 On January 7, 1997, respondent Judge issued its questioned order granting private respondent Aguilar's urgent motion to reiterate preliminary injunction. The pertinent portion of the order reads: In light of the foregoing, petitioner Aguilar's urgent motion to reiterate writ of preliminary injunction is hereby granted, and respondents' motion to dismiss is denied. The writ of preliminary injunction dated September 25, 1995 is declared to be in force and effect. Let a copy of this Order and the writ be served personally by the Court's sheriff upon the respondents at petitioners' expense.

Prefatorily, there is merit in the observation of petitioners53 that while CHED Resolution No. 181-96 disapproved the expulsion of other private respondents, it nonetheless authorized their exclusion from petitioner DLSU. However, because of the dismissal of the CA case, petitioner DLSU is now faced with the spectacle of having two different directives from the CHED and the respondent Judge – CHED ordering the exclusion of private respondents Bungubung, Reverente, and Valdes, Jr., and the Judge ordering petitioner DLSU to allow them to enroll and complete their degree courses until their graduation. This is the reason We opt to decide the whole case on the merits, brushing aside technicalities, in order to settle the substantial issues involved. This Court has the power to take cognizance of the petition at bar due to compelling reasons, and the nature and importance of the issues raised warrant the immediate exercise of Our jurisdiction.54This is in consonance with our case law now accorded near-religious reverence that rules of procedure are but tools designed to facilitate the attainment of justice, such that when its rigid application tends to frustrate rather than promote substantial justice, this Court has the duty to suspend their operation.55 I. It is the CHED, not DECS, power of supervision and disciplinary cases decided of higher learning.

which has the review over by institutions

Ang CHED, hindi ang DECS, ang may kapangyarihan ng pagsubaybay at pagrepaso sa mga desisyong pandisiplina ng mga institusyon ng mas mataas na pag-aaral.

SO ORDERED.48 Accordingly, private respondent Aguilar was allowed to conditionally enroll in petitioner DLSU, subject to the continued effectivity of the writ of preliminary injunction dated September 25, 1995 and to the outcome of Civil Case No. 95-74122.

Petitioners posit that the jurisdiction and duty to review student expulsion cases, even those involving students in secondary and tertiary levels, is vested in the DECS not in the CHED. In support of their stance, petitioners cite Sections 4, 56 15(2) & (3),57 54,58 57(3)59 and 7060 of Batas Pambansa (B.P.) Blg. 232, otherwise known as the "Education Act of 1982."

On February 17, 1997, petitioners filed the instant petition. TRO49

On June 15, 1998, We issued a as prayed for by the urgent motion for the issuance of a TRO50 dated June 4, 1998 of petitioners, and enjoined respondent Judge from implementing the writ of preliminary injunction dated September 25, 1995 issued in Civil Case No. 95-74122, effective immediately and until further orders from this Court. On March 27, 2006, private respondent Aguilar filed his manifestation51 stating that he has long completed his course at petitioner DLSU. He finished and passed all his enrolled subjects for the second trimester of 1997-1998, as indicated in his transcript of records52 issued by DLSU. However, despite having completed all the academic requirements for his course, DLSU has not issued a certificate of completion/graduation in his favor.

According to them, Republic Act (R.A.) No. 7722 did not transfer to the CHED the DECS' power of supervision/review over expulsion cases involving institutions of higher learning. They say that unlike B.P. Blg. 232, R.A. No. 7722 makes no reference to the right and duty of learning institutions to develop moral character and instill discipline among its students. The clear concern of R.A. No. 7722 in the creation of the CHED was academic, i.e., the formulation, recommendation, setting, and development of academic plans, programs and standards for institutions of higher learning. The enumeration of CHED's powers and functions under Section 8 does not include supervisory/review powers in student disciplinary cases. The reference in Section 3 to CHED's "coverage" of institutions of higher education is limited to the powers and functions specified in Section 8. The Bureau of Higher Education, which the CHED has replaced and whose functions and responsibilities it has taken over, never had any authority over student disciplinary cases. We cannot agree.

Issues We are tasked to resolve the following issues: 1. Whether it is the DECS or the CHED which has legal authority to review decisions of institutions of higher learning that impose disciplinary action on their students found violating disciplinary rules. 2. Whether or not petitioner DLSU is within its rights in expelling private respondents. 2.a Were private respondents accorded due process of law?

On May 18, 1994, Congress approved R.A. No. 7722, otherwise known as "An Act Creating the Commission on Higher Education, Appropriating Funds Thereof and for other purposes." Section 3 of the said law, which paved the way for the creation of the CHED, provides: Section 3. Creation of the Commission on Higher Education. – In pursuance of the abovementioned policies, the Commission on Higher Education is hereby created, hereinafter referred to as Commission. The Commission shall be independent and separate from the Department of Education, Culture and Sports (DECS) and attached to the office of the

President for administrative purposes only. Its coverage shall be both public and private institutions of higher education as well as degreegranting programs in all post secondary educational institutions, public and private. The powers and functions of the CHED are enumerated in Section 8 of R.A. No. 7722. They include the following: Sec. 8. Powers and functions of the Commission. – The Commission shall have the following powers and functions:

distinguit nec nos distinguere debemus: Where the law does not distinguish, neither should we. To Our mind, this provision, if not an explicit grant of jurisdiction to the CHED, necessarily includes the transfer to the CHED of any jurisdiction which the DECS might have possessed by virtue of B.P. Blg. 232 or any other law or rule for that matter. IIa. Private respondents were accorded due process of law. Ang mga private respondents ay nabigyan ng tamang proseso ng batas.

xxxx n) promulgate such rules and regulations and exercise such other powers and functions as may be necessary to carry out effectively the purpose and objectives of this Act; and o) perform such other functions as may be necessary for its effective operations and for the continued enhancement of growth or development of higher education. Clearly, there is no merit in the contention of petitioners that R.A. No. 7722 did not transfer to the CHED the DECS' power of supervision/review over expulsion cases involving institutions of higher learning. First, the foregoing provisions are all-embracing. They make no reservations of powers to the DECS insofar as institutions of higher learning are concerned. They show that the authority and supervision over all public and private institutions of higher education, as well as degree-granting programs in all post-secondary educational institutions, public and private, belong to the CHED, not the DECS. Second, to rule that it is the DECS which has authority to decide disciplinary cases involving students on the tertiary level would render nugatory the coverage of the CHED, which is "both public and private institutions of higher education as well as degree granting programs in all post secondary educational institutions, public and private." That would be absurd. It is of public knowledge that petitioner DLSU is a private educational institution which offers tertiary degree programs. Hence, it is under the CHED authority. Third, the policy of R.A. No. 772261 is not only the protection, fostering and promotion of the right of all citizens to affordable quality education at all levels and the taking of appropriate steps to ensure that education shall be accessible to all. The law is likewise concerned with ensuring and protecting academic freedom and with promoting its exercise and observance for the continued intellectual growth of students, the advancement of learning and research, the development of responsible and effective leadership, the education of high-level and middle-level professionals, and the enrichment of our historical and cultural heritage. It is thus safe to assume that when Congress passed R.A. No. 7722, its members were aware that disciplinary cases involving students on the tertiary level would continue to arise in the future, which would call for the invocation and exercise of institutions of higher learning of their right to academic freedom. Fourth, petitioner DLSU cited no authority in its bare claim that the Bureau of Higher Education, which CHED replaced, never had authority over student disciplinary cases. In fact, the responsibilities of other government entities having functions similar to those of the CHED were transferred to the CHED.62 Section 77 of the MRPS63 on the process of review in student discipline cases should therefore be read in conjunction with the provisions of R.A. No. 7722. Fifth, Section 18 of R.A. No. 7722 is very clear in stating that "[j]urisdiction over DECSsupervised or chartered state-supported post-secondary degree-granting vocational and tertiary institutions shall be transferred to the Commission [On Higher Education]." This provision does not limit or distinguish that what is being transferred to the CHED is merely the formulation, recommendation, setting and development of academic plans, programs and standards for institutions of higher learning, as what petitioners would have us believe as the only concerns of R.A. No. 7722. Ubi lex non

The Due Process Clause in Article III, Section 1 of the Constitution embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our entire history.64 The constitutional behest that no person shall be deprived of life, liberty or property without due process of law is solemn and inflexible.65 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."66 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.67 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.68 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.69 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.70 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.71 "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.72 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 University73 where this Court held that "x x x the imposition of disciplinary sanctions requires observance of procedural due process. And it bears stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may be summary; and cross examination is not, x x x an essential part thereof." IIb. Petitioner DLSU, as an institution of higher learning, possesses academic freedom which includes determination of who to admit for study. Ang petitioner DLSU, bilang institusyon ng mas mataas na pag-aaral, ay nagtataglay ng kalayaang akademiko na sakop ang karapatang pumili ng mga mag-aaral dito.

Section 5(2), Article XIV of the Constitution guaranties all institutions of higher learning academic freedom. This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public interest calls for some restraint.74 According to present jurisprudence, academic freedom encompasses the independence of an academic institution to determine for itself (1) who may teach, (2) what may be taught, (3) how it shall teach, and (4) who may be admitted to study.75 It cannot be gainsaid that "the school has an interest in teaching the student discipline, a necessary, if not indispensable, value in any field of learning. By instilling discipline, the school teaches discipline. Accordingly, the right to discipline the student likewise finds basis in the freedom "what to teach."76 Indeed, while it is categorically stated under the Education Act of 1982 that students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation,"77 such right is subject to the established academic and disciplinary standards laid down by the academic institution. Petitioner DLSU, therefore, can very well exercise its academic freedom, which includes its free choice of students for admission to its school.

More importantly, it will seriously impair petitioner university's academic freedom which has been enshrined in the 1935, 1973 and the present 1987 Constitution.87 Certainly, private respondents Bungubung, Reverente and Valdes, Jr. do not deserve to claim a venerable institution as their own, for they may foreseeably cast a malevolent influence on the students currently enrolled, as well as those who come after them.88 It must be borne in mind that universities are established, not merely to develop the intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes; nay, the development, or flowering if you will, of the total man.89 As for private respondent Aguilar, however, We are inclined to give credence to his alibi that he was at Camp Crame in Quezon City at the time of the incident in question on March 29, 1995. This claim was amply corroborated by the certification that he submitted before the DLSU-CSB Joint Discipline Board, to wit: CERTIFICATION TO WHOM THIS MAY CONCERN:

IIc. The guilt of private respondents Bungubung, Reverente and Valdes, Jr. was proven by substantial evidence. Ang pagkakasala ng private respondents na sina Bungubung, Reverente at Valdes, Jr. ay napatunayan ng ebidensiyang substansyal. As has been stated earlier, private respondents interposed the common defense of alibi. However, in order that alibi may succeed as a defense, "the accused must establish by clear and convincing evidence (a) his presence at another place at the time of the perpetration of the offense and (b) the physical impossibility of his presence at the scene of the crime."78 On the other hand, the defense of alibi may not be successfully invoked where the identity of the assailant has been established by witnesses.79 Positive identification of accused where categorical and consistent, without any showing of ill motive on the part of the eyewitness testifying, should prevail over the alibi and denial of appellants whose testimonies are not substantiated by clear and convincing evidence.80 Wellsettled is the rule that denial and alibi, being weak defenses, cannot overcome the positive testimonies of the offended parties.81 Courts reject alibi when there are credible eyewitnesses to the crime who can positively identify the accused.82 Alibi is an inherently weak defense and courts must receive it with caution because one can easily fabricate an alibi.83Jurisprudence holds that denial, like alibi, is inherently weak and crumbles in light of positive declarations of truthful witnesses who testified on affirmative matters that accused were at the scene of the crime and were the victim's assailants. As between categorical testimonies that ring of truth on one hand and a bare denial on the other, the former must prevail.84 Alibi is the weakest of all defenses for it is easy to fabricate and difficult to disprove, and it is for this reason that it cannot prevail over the positive identification of accused by the witnesses.85 The required proof in administrative cases, such as in student discipline cases, is neither proof beyond reasonable doubt nor preponderance of evidence but only substantial evidence. According to Ang Tibay v. Court of Industrial Relations,86 it means "such reasonable evidence as a reasonable mind might accept as adequate to support a conclusion." Viewed from the foregoing, We reject the alibi of private respondents Bungubung, Valdes Jr., and Reverente.1awphi1 They were unable to show convincingly that they were not at the scene of the crime on March 29, 1995 and that it was impossible for them to have been there. Moreover, their alibi cannot prevail over their positive identification by the victims. We hark back to this Court's pronouncement affirming the expulsion of several students found guilty of hazing: No one can be so myopic as to doubt that the immediate reinstatement of respondent students who have been investigated and found guilty by the Disciplinary Board to have violated petitioner university's disciplinary rules and standards will certainly undermine the authority of the administration of the school. This we would be most loathe to do.

We, the undersigned, hereby declare and affirm by way of this Certification that sometime on March 29, 1995, at about and between 4:30 P.M. and 5:30 P.M., we were together with Alvin A. Aguilar, at Kiangan Hall, inside Camp Crame, Quezon City, meeting in connection with an affair of our class known as Class 7, Batch 89 of the Philippine Constabulary discussing on the proposed sponsorship of TAU GAMMA PHI from said Batch '89 affair. That the meeting was terminated at about 6:30 P.M. that evening and Alvin Aguilar had asked our permission to leave and we saw him leave Camp Crame, in his car with the driver. April 18, 1995, Camp Crame, Quezon City.90 The said certification was duly signed by PO3 Nicanor R. Faustino (Anti-Organized Crime CIC, NCR), PO3 Alejandro D. Deluviar (ODITRM, Camp Crame, Quezon City), PO2 Severino C. Filler (TNTSC, Camp Crame, Quezon City), and PO3 Ireneo M. Desesto (Supply Center, PNPLSS). The rule is that alibi assumes significance or strength when it is amply corroborated by credible and disinterested witnesses.91 It is true that alibi is a weak defense which an accused can easily fabricate to escape criminal liability. But where the prosecution evidence is weak, and betrays lack of credibility as to the identification of defendant, alibi assumes commensurate strength. This is but consistent with the presumption of innocence in favor of accused.92 Alibi is not always undeserving of credit, for there are times when accused has no other possible defense for what could really be the truth as to his whereabouts at the crucial time, and such defense may, in fact, tilt the scales of justice in his favor.93 III. The penalty of expulsion imposed by DLSU on private respondents is disproportionate to their misdeed. Ang parusang expulsion na ipinataw ng DLSU sa private respondents ay hindi angkop sa kanilang pagkakasala. It is true that schools have the power to instill discipline in their students as subsumed in their academic freedom and that "the establishment of rules governing universitystudent relations, particularly those pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival."94 This power, however, does not give them the untrammeled discretion to impose a penalty which is not commensurate with the gravity of the misdeed. If the concept of proportionality between the offense committed and the sanction imposed is not followed, an element of arbitrariness intrudes. That would give rise to a due process question.95 We agree with respondent CHED that under the circumstances, the penalty of expulsion is grossly disproportionate to the gravity of the acts committed by private respondents Bungubung, Reverente, and Valdes, Jr. Each of the two mauling incidents lasted only for few seconds and the victims did not suffer any serious injury. Disciplinary measures especially where they involve suspension, dismissal or expulsion,

cut significantly into the future of a student. They attach to him for life and become a mortgage of his future, hardly redeemable in certain cases. Officials of colleges and universities must be anxious to protect it, conscious of the fact that, appropriately construed, a disciplinary action should be treated as an educational tool rather than a punitive measure.96 Accordingly, We affirm the penalty of exclusion97 only, not expulsion,98 imposed on them by the CHED. As such, pursuant to Section 77(b) of the MRPS, petitioner DLSU may exclude or drop the names of the said private respondents from its rolls for being undesirable, and transfer credentials immediately issued. WHEREFORE, the petition is PARTIALLY GRANTED. The Court of Appeals Resolutions dated July 30, 1996 and dated October 15, 1996, and Regional Trial Court of Manila, Branch 36, Order dated January 7, 1997 are ANNULLED AND SET ASIDE, while CHED Resolution 181-96 dated May 14, 1996 is AFFIRMED. Petitioner DLSU is ordered to issue a certificate of completion/graduation in favor of private respondent Aguilar. On the other hand, it may exclude or drop the names of private respondents Bungubung, Reverente, and Valdes, Jr. from its rolls, and their transfer credentials immediately issued. SO ORDERED. Ynares-Santiago, JJ., concur.

Chairperson,

Quisumbing *,

Chico-Nazario,

Velasco,

Jr. ** ,

Republic of the Philippines SUPREME COURT Manila EN BANC

Apolinario Esber and the suspension for nine (9) months of Babaran, Budoy and del Castillo. 8 4. In the meantime, the "MPSTA filed a petition for certiorari before the Regional Trial Court of Manila against petitioner (Cariño), which was dismissed (unmarked CHR Exhibit, Annex I). Later, the MPSTA went to the Supreme Court (on certiorari, in an attempt

G.R. No. 96681 December 2, 1991 HON. ISIDRO CARIÑO, in his capacity as Secretary of the Department of Education, Culture & Sports, DR. ERLINDA LOLARGA, in her capacity as Superintendent of City Schools of Manila, petitioners, vs. THE COMMISSION ON HUMAN RIGHTS, GRACIANO BUDOY, JULIETA BABARAN, ELSA IBABAO, HELEN LUPO, AMPARO GONZALES, LUZ DEL CASTILLO, ELSA REYES and APOLINARIO ESBER, respondents.

NARVASA, J.: The issue raised in the special civil action of certiorari and prohibition at bar, instituted by the Solicitor General, may be formulated as follows: where the relief sought from the Commission on Human Rights by a party in a case consists of the review and reversal or modification of a decision or order issued by a court of justice or government agency or official exercising quasi-judicial functions, may the Commission take cognizance of the case and grant that relief? Stated otherwise, where a particular subject-matter is placed by law within the jurisdiction of a court or other government agency or official for purposes of trial and adjudgment, may the Commission on Human Rights take cognizance of the same subject-matter for the same purposes of hearing and adjudication? The facts narrated in the petition are not denied by the respondents and are hence taken as substantially correct for purposes of ruling on the legal questions posed in the present action. These facts, 1 together with others involved in related cases recently resolved by this Court 2 or otherwise undisputed on the record, are hereunder set forth. 1. On September 17, 1990, a Monday and a class day, some 800 public school teachers, among them members of the Manila Public School Teachers Association (MPSTA) and Alliance of Concerned Teachers (ACT) undertook what they described as "mass concerted actions" to "dramatize and highlight" their plight resulting from the alleged failure of the public authorities to act upon grievances that had time and again been brought to the latter's attention. According to them they had decided to undertake said "mass concerted actions" after the protest rally staged at the DECS premises on September 14, 1990 without disrupting classes as a last call for the government to negotiate the granting of demands had elicited no response from the Secretary of Education. The "mass actions" consisted in staying away from their classes, converging at the Liwasang Bonifacio, gathering in peaceable assemblies, etc. Through their representatives, the teachers participating in the mass actions were served with an order of the Secretary of Education to return to work in 24 hours or face dismissal, and a memorandum directing the DECS officials concerned to initiate dismissal proceedings against those who did not comply and to hire their replacements. Those directives notwithstanding, the mass actions continued into the week, with more teachers joining in the days that followed. 3

to nullify said dismissal, grounded on the) alleged violation of the striking teachers" right to due process and peaceable assembly docketed as G.R. No. 95445, supra. The ACT also filed a similar petition before the Supreme Court . . . docketed as G.R. No. 95590." 9

Both petitions in this Court were filed in behalf of the teacher associations, a few named individuals, and "other teacher-members so numerous similarly situated" or "other similarly situated public school teachers too numerous to be impleaded." 5. In the meantime, too, the respondent teachers submitted sworn statements dated September 27, 1990 to the Commission on Human Rights to complain that while they were participating in peaceful mass actions, they suddenly learned of their replacements as teachers, allegedly without notice and consequently for reasons completely unknown to them. 10 6. Their complaints — and those of other teachers also "ordered suspended by the . . . (DECS)," all numbering forty-two (42) — were docketed as "Striking Teachers CHR Case No. 90775." In connection therewith the Commission scheduled a "dialogue" on October 11, 1990, and sent a subpoena to Secretary Cariño requiring his attendance therein. 11

On the day of the "dialogue," although it said that it was "not certain whether he (Sec. Cariño) received the subpoena which was served at his office, . . . (the) Commission, with the Chairman presiding, and Commissioners Hesiquio R. Mallilin and Narciso C. Monteiro, proceeded to hear the case;" it heard the complainants' counsel (a) explain that his clients had been "denied due process and suspended without formal notice, and unjustly, since they did not join the mass leave," and (b) expatiate on the grievances which were "the cause of the mass leave of MPSTA teachers, (and) with which causes they (CHR complainants) sympathize." 12

The Commission thereafter issued an Order 13reciting these facts and making the following disposition: To be properly apprised of the real facts of the case and be accordingly guided in its investigation and resolution of the matter, considering that these forty two teachers are now suspended and deprived of their wages, which they need very badly, Secretary Isidro Cariño, of the Department of Education, Culture and Sports, Dr. Erlinda Lolarga, school superintendent of Manila and the Principal of Ramon Magsaysay High School, Manila, are hereby enjoined to appear and enlighten the Commission en banc on October 19, 1990 at 11:00 A.M. and to bring with them any and all documents relevant to the allegations aforestated herein to assist the Commission in this matter. Otherwise, the Commission will resolve the complaint on the basis of complainants' evidence. xxx

xxx

xxx

7. Through the Office of the Solicitor General, Secretary Cariño sought and was granted leave to file a motion to dismiss the case. His motion to dismiss was submitted on November 14, 1990 alleging as grounds therefor, "that the complaint states no cause of action and that the CHR has no jurisdiction over the case." 14

8. Pending determination by the Commission of the motion to dismiss, judgments affecting the "striking teachers" were Among those who took part in the "concerted mass actions" were the eight (8) private respondents herein, teachers at the Ramon

promulgated in two (2) cases, as aforestated, viz.:

Magsaysay High School, Manila, who had agreed to support the non-political demands of the MPSTA. 4

2. For failure to heed the return-to-work order, the CHR complainants (private respondents) were administratively charged on the basis of the principal's report and given five (5) days to answer the charges. They were also preventively suspended for ninety (90) days "pursuant to Section 41 of P.D. 807" and temporarily replaced (unmarked CHR Exhibits, Annexes F, G, H). An investigation committee was consequently formed to hear the charges in accordance with P.D. 807. 5

a) The Decision dated December l7, 1990 of Education Secretary Cariño in Case No. DECS 90-082, decreeing dismissal from the service of Apolinario Esber and the suspension for nine (9) months of Babaran, Budoy and del Castillo; 15 and

3. In the administrative case docketed as Case No. DECS 90-082 in which CHR complainants Graciano Budoy, Jr., Julieta Babaran, Luz del Castillo, Apolinario Esber were, among others, named respondents, 6

the latter filed separate answers, opted for a formal investigation, and also moved "for suspension of the administrative proceedings pending resolution by . . (the Supreme) Court of their application for issuance of an injunctive writ/temporary restraining order." But when their motion for suspension was denied by Order dated November 8, 1990 of the Investigating Committee, which later also denied their motion for reconsideration orally made at the hearing of November 14, 1990, "the respondents led by their counsel staged a walkout signifying their intent to boycott the entire proceedings." 7 The case eventually resulted in a Decision of Secretary Cariño dated December 17, 1990, rendered after evaluation of the evidence as well as the answers, affidavits and documents submitted by the respondents, decreeing dismissal from the service of

b) The joint Resolution of this Court dated August 6, 1991 in G.R. Nos. 95445 and 95590 dismissing the petitions "without prejudice to any appeals, if still timely, that the individual petitioners may take to the Civil Service Commission on the matters complained of," 16 and inter alia "ruling that it was prima facie lawful for petitioner Cariño to issue return-to-work orders, file administrative charges against recalcitrants, preventively suspend them, and issue decision on those charges." 17

9. In an Order dated December 28, 1990, respondent Commission denied Sec. Cariño's motion to dismiss and required him and Superintendent Lolarga "to submit their counter-affidavits within ten (10) days . . . (after which) the Commission shall proceed to hear and resolve the case on the merits with or without respondents counter affidavit." 18

It held that the "striking teachers" "were denied due process of law; . . . they should not have been replaced without a chance to reply to the administrative charges;" there had been a violation of

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in

their civil and political rights which the Commission was empowered to investigate; and while expressing its "utmost respect to the Supreme Court . . . the facts before . . . (it) are different from those in the case decided by the Supreme Court" (the reference being unmistakably to this Court's joint Resolution of August 6, 1991 in G.R. Nos. 95445 and 95590, supra).

accordance with the Rules of Court;

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

It is to invalidate and set aside this Order of December 28, 1990 that the Solicitor General, in behalf of petitioner Cariño, has commenced the present action of certiorari and prohibition.

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

(5) Establish a continuing program of research, education, and information to enhance respect for the primacy of

The Commission on Human Rights has made clear its position that it does not feel bound by this Court's joint Resolution in G.R. Nos. 95445 and 95590, supra. It has also made plain its intention "to hear and resolve the case (i.e., Striking Teachers HRC Case No. 90-775) on the merits." It intends, in other words, to try and decide or hear and determine, i.e., exercise jurisdiction over the following general issues:

human rights;

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

1) whether or not the striking teachers were denied due process, and just cause exists for the imposition of administrative disciplinary sanctions on them by their superiors; and

(7) Monitor the Philippine Government's compliance with international treaty obligations on human rights;

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

2) whether or not the grievances which were "the cause of the mass leave of MPSTA teachers, (and) with which causes they (CHR complainants) sympathize," justify their mass action or strike.

its authority;

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

The Commission evidently intends to itself adjudicate, that is to say, determine with character of finality and definiteness, the same issues which have been passed upon and decided by the Secretary of Education, Culture & Sports, subject to appeal to the Civil Service Commission, this Court having in fact, as aforementioned, declared that the teachers affected may take appeals to the Civil Service Commission on said matters, if still timely. The threshold question is whether or not the Commission on Human Rights has the power under the Constitution to do so; whether or not, like a court of justice, 19 or even a quasi-judicial agency, 20 it has jurisdiction or adjudicatory powers over, or the power to try and decide, or hear and determine, certain specific type of cases, like alleged human rights violations involving civil or political rights.

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

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

As should at once be observed, only the first of the enumerated powers and functions bears any resemblance to adjudication or adjudgment. The Constitution clearly and categorically grants to the Commission the power to investigate all forms of human rights violations involving civil and political rights. It can exercise that power on its own initiative or on complaint of any person. It may exercise that power pursuant to such rules of procedure as it may adopt and, in cases of violations of said rules, cite for contempt in accordance with the Rules of Court. In the course of any investigation conducted by it or under its authority, it may grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is

The Court declares the Commission on Human Rights to have no such power; and that it was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter. The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. 21 This function, to repeat, the Commission does not have. 22

necessary or convenient to determine the truth. It may also request the assistance of any department, bureau, office, or agency in the performance of its functions, in the conduct of its investigation or in extending such remedy as may be required by its findings. 26

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

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically. "to search or inquire into: . . . to subject to an official probe . . .: to conduct an official inquiry." 27

The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts established by the inquiry.

The proposition is made clear by the constitutional provisions specifying the powers of the Commission on Human Rights.

The Commission was created by the 1987 Constitution as an independent office. 23

Upon its constitution, it succeeded and superseded the Presidential Committee on Human Rights existing at the time of the effectivity of the Constitution. 24 Its powers and functions are the following 25

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" 28 "to inquire; to make an investigation," "investigation" being in turn describe as "(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or matters." 29 "Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a court case) on the merits of issues

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

raised: . . . to pass judgment on: settle judicially: . . . act as judge." 30

And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: . . . to award or grant judicially in a case of controversy . . . ." 31

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. . . . Implies a judicial determination of a fact, and the entry of a judgment." 32

Hence it is that the Commission on Human Rights, having merely the power "to investigate," cannot and should not "try and resolve on the merits" (adjudicate) the matters involved in Striking Teachers HRC Case No. 90-775, as it has announced it means to do; and it cannot do so even if there be a claim that in the administrative disciplinary proceedings against the teachers in question, initiated and conducted by the DECS, their human rights, or civil or political rights had been transgressed. More particularly, the Commission has no power to "resolve on the merits" the question of (a) whether or not the mass concerted actions engaged in by the teachers constitute and are prohibited or otherwise restricted by law; (b) whether or not the act of carrying on and taking part in those actions, and the failure of the teachers to discontinue those actions, and return to their classes despite the order to this effect by the Secretary of Education, constitute infractions of relevant rules and regulations warranting administrative disciplinary sanctions, or are justified by the grievances complained of by them; and (c) what where the particular acts done by each individual teacher and what sanctions, if any, may properly be imposed for said acts or omissions.

These are matters undoubtedly and clearly within the original jurisdiction of the Secretary of Education, being within the scope of the disciplinary powers granted to him under the Civil Service Law, and also, within the appellate jurisdiction of the Civil Service Commission.

Indeed, the Secretary of Education has, as above narrated, already taken cognizance of the issues and resolved them, 33

and it appears that appeals have been seasonably taken by the aggrieved parties to the Civil Service Commission; and even this Court itself has had occasion to pass upon said issues. 34

Now, it is quite obvious that whether or not the conclusions reached by the Secretary of Education in disciplinary cases are correct and are adequately based on substantial evidence; whether or not the proceedings themselves are void or defective in not having accorded the respondents due process; and whether or not the Secretary of Education had in truth committed "human rights violations involving civil and political rights," are matters which may be passed upon and determined through a motion for reconsideration addressed to the Secretary Education himself, and in the event of an adverse verdict, may be reviewed by the Civil Service Commission and eventually the Supreme Court.

The Commission on Human Rights simply has no place in this scheme of things. It has no business intruding into the jurisdiction and functions of the Education Secretary or the Civil Service Commission. It has no business going over the same ground traversed by the latter and making its own judgment on the questions involved. This would accord success to what may well have been the complaining teachers' strategy to abort, frustrate or negate the judgment of the Education Secretary in the administrative cases against them which they anticipated would be adverse to them.

This cannot be done. It will not be permitted to be done.

In any event, the investigation by the Commission on Human Rights would serve no useful purpose. If its investigation should result in conclusions contrary to those reached by Secretary Cariño, it would have no power anyway to reverse the Secretary's conclusions. Reversal thereof can only by done by the Civil Service Commission and lastly by this Court. The only thing the Commission can do, if it concludes that Secretary Cariño was in error, is to refer the matter to the appropriate Government agency or tribunal for assistance; that would be the Civil Service Commission. 35

It cannot arrogate unto itself the appellate jurisdiction of the Civil Service Commission. WHEREFORE, the petition is granted; the Order of December 29, 1990 is ANNULLED and SET ASIDE, and the respondent Commission on Human Rights and the Chairman and Members thereof are prohibited "to hear and resolve the case (i.e., Striking Teachers HRC Case No. 90-775) on the merits." SO ORDERED. Melencio-Herrera, Cruz, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr. and Romero, JJ, concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 100150 January 5, 1994 BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO OCAMPO, petitioners, vs. COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN DOES, respondents. The City Attorney for petitioners. The Solicitor General for public respondent.

5. that the complainants (were) occupying government land, particularly the sidewalk of EDSA corner North Avenue, Quezon City; . . . and 6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and authority whether or not a certain business establishment (should) be allowed to operate within the jurisdiction of Quezon City, to revoke or cancel a permit, if already issued, upon grounds clearly specified by law and ordinance.8 During the 12 September 1990 hearing, the petitioners moved for postponement, arguing that the motion to dismiss set for 21 September 1990 had yet to be resolved. The petitioners likewise manifested that they would bring the case to the courts.

VITUG, J.: The extent of the authority and power of the Commission on Human Rights ("CHR") is again placed into focus in this petition for prohibition, with prayer for a restraining order and preliminary injunction. The petitioners ask us to prohibit public respondent CHR from further hearing and investigating CHR Case No. 90-1580, entitled "Fermo, et al. vs. Quimpo, et al." The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos Quimpo (one of the petitioners) in his capacity as an Executive Officer of the Quezon City Integrated Hawkers Management Council under the Office of the City Mayor, was sent to, and received by, the private respondents (being the officers and members of the North EDSA Vendors Association, Incorporated). In said notice, the respondents were given a grace-period of three (3) days (up to 12 July 1990) within which to vacate the questioned premises of North EDSA.1Prior to their receipt of the demolition notice, the private respondents were informed by petitioner Quimpo that their stalls should be removed to give way to the "People's Park".2 On 12 July 1990, the group, led by their President Roque Fermo, filed a letter-complaint (Pinag-samang Sinumpaang Salaysay) with the CHR against the petitioners, asking the late CHR Chairman Mary Concepcion Bautista for a letter to be addressed to then Mayor Brigido Simon, Jr., of Quezon City to stop the demolition of the private respondents' stalls, sari-sari stores, and carinderia along North EDSA. The complaint was docketed as CHR Case No. 901580.3 On 23 July 1990, the CHR issued an Order, directing the petitioners "to desist from demolishing the stalls and shanties at North EDSA pending resolution of the vendors/squatters' complaint before the Commission" and ordering said petitioners to appear before the CHR.4 On the basis of the sworn statements submitted by the private respondents on 31 July 1990, as well as CHR's own ocular inspection, and convinced that on 28 July 1990 the petitioners carried out the demolition of private respondents' stalls, sari-sari stores and carinderia,5 the CHR, in its resolution of 1 August 1990, ordered the disbursement of financial assistance of not more than P200,000.00 in favor of the private respondents to purchase light housing materials and food under the Commission's supervision and again directed the petitioners to "desist from further demolition, with the warning that violation of said order would lead to a citation for contempt and arrest."6

On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners, stating that the Commission's authority should be understood as being confined only to the investigation of violations of civil and political rights, and that "the rights allegedly violated in this case (were) not civil and political rights, (but) their privilege to engage in business."9 On 21 September 1990, the motion to dismiss was heard and submitted for resolution, along with the contempt charge that had meantime been filed by the private respondents, albeit vigorously objected to by petitioners (on the ground that the motion to dismiss was still then unresolved).10 In an Order,11 dated 25 September 1990, the CHR cited the petitioners in contempt for carrying out the demolition of the stalls, sari-sari stores and carinderia despite the "order to desist", and it imposed a fine of P500.00 on each of them. On 1 March 1991,12 the CHR issued an Order, denying petitioners' motion to dismiss and supplemental motion to dismiss, in this wise: Clearly, the Commission on Human Rights under its constitutional mandate had jurisdiction over the complaint filed by the squatters-vendors who complained of the gross violations of their human and constitutional rights. The motion to dismiss should be and is hereby DENIED for lack of merit.13 The CHR opined that "it was not the intention of the (Constitutional) Commission to create only a paper tiger limited only to investigating civil and political rights, but it (should) be (considered) a quasi-judicial body with the power to provide appropriate legal measures for the protection of human rights of all persons within the Philippines . . . ." It added: The right to earn a living is a right essential to one's right to development, to life and to dignity. All these brazenly and violently ignored and trampled upon by respondents with little regard at the same time for the basic rights of women and children, and their health, safety and welfare. Their actions have psychologically scarred and traumatized the children, who were witness and exposed to such a violent demonstration of Man's inhumanity to man.

A motion to dismiss,7 dated 10 September 1990, questioned CHR's jurisdiction. The motion also averred, among other things, that: 1. this case came about due to the alleged violation by the (petitioners) of the Inter-Agency Memorandum of Agreement whereby Metro-Manila Mayors agreed on a moratorium in the demolition of the dwellings of poor dwellers in Metro-Manila; xxx xxx xxx 3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred to therein refers to moratorium in the demolition of the structures of poor dwellers;

In an Order,14 dated 25 April 1991, petitioners' motion for reconsideration was denied. Hence, this recourse. The petition was initially dismissed in our resolution15 of 25 June 1991; it was subsequently reinstated, however, in our resolution16 of 18 June 1991, in which we also issued a temporary restraining order, directing the CHR to "CEASE and DESIST from further hearing CHR No. 90-1580."17 The petitioners pose the following:

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

Whether or not the public respondent has jurisdiction:

a) to investigate the alleged violations of the "business rights" of the private respondents whose stalls were demolished by the petitioners at the instance and authority given by the Mayor of Quezon City; b) to impose the fine of P500.00 each on the petitioners; and c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by the demolition. In the Court's resolution of 10 October 1991, the Solicitor-General was excused from filing his comment for public respondent CHR. The latter thus filed its own comment,18 through Hon. Samuel Soriano, one of its Commissioners. The Court also resolved to dispense with the comment of private respondent Roque Fermo, who had since failed to comply with the resolution, dated 18 July 1991, requiring such comment. The petition has merit. The Commission on Human Rights was created by the 1987 Constitution.19 It was formally constituted by then President Corazon Aquino via Executive Order No. 163,20 issued on 5 May 1987, in the exercise of her legislative power at the time. It succeeded, but so superseded as well, the Presidential Committee on Human Rights.21 The powers and functions22 of the Commission are defined by the 1987 Constitution, thus: to — (1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; (2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court; (3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection; (4) Exercise visitorial powers over jails, prisons, or detention facilities; (5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; (6) Recommend to the Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families; (7) Monitor the Philippine Government's compliance with international treaty obligations on human rights; (8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; (9) Request the assistance of any department, bureau, office, or agency in the performance of its functions; (10) Appoint its officers and employees in accordance with law; and (11) Perform such other duties and functions as may be provided by law.

In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes that the intention of the members of the Constitutional Commission is to make CHR a quasi-judicial body.23 This view, however, has not heretofore been shared by this Court. In Cariño v. Commission on Human Rights,24 the Court, through then Associate Justice, now Chief Justice Andres Narvasa, has observed that it is "only the first of the enumerated powers and functions that bears any resemblance to adjudication or adjudgment," but that resemblance can in no way be synonymous to the adjudicatory power itself. The Court explained: . . . (T)he Commission on Human Rights . . . was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter. The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the Commission does not have. After thus laying down at the outset the above rule, we now proceed to the other kernel of this controversy and, its is, to determine the extent of CHR's investigative power. It can hardly be disputed that the phrase "human rights" is so generic a term that any attempt to define it, albeit not a few have tried, could at best be described as inconclusive. Let us observe. In a symposium on human rights in the Philippines, sponsored by the University of the Philippines in 1977, one of the questions that has been propounded is "(w)hat do you understand by "human rights?" The participants, representing different sectors of the society, have given the following varied answers: Human rights are the basic rights which inhere in man by virtue of his humanity. They are the same in all parts of the world, whether the Philippines or England, Kenya or the Soviet Union, the United States or Japan, Kenya or Indonesia . . . . Human rights include civil rights, such as the right to life, liberty, and property; freedom of speech, of the press, of religion, academic freedom, and the rights of the accused to due process of law; political rights, such as the right to elect public officials, to be elected to public office, and to form political associations and engage in politics; and social rights, such as the right to an education, employment, and social services.25 Human rights are the entitlement that inhere in the individual person from the sheer fact of his humanity. . . . Because they are inherent, human rights are not granted by the State but can only be recognized and protected by it.26 (Human rights include all) the civil, political, economic, social, and cultural rights defined in the Universal Declaration of Human Rights.27 Human rights are rights that pertain to man simply because he is human. They are part of his natural birth, right, innate and inalienable.28 The Universal Declaration of Human Rights, as well as, or more specifically, the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights, suggests that the scope of human rights can be

understood to include those that relate to an individual's social, economic, cultural, political and civil relations. It thus seems to closely identify the term to the universally accepted traits and attributes of an individual, along with what is generally considered to be his inherent and inalienable rights, encompassing almost all aspects of life. Have these broad concepts been equally contemplated by the framers of our 1986 Constitutional Commission in adopting the specific provisions on human rights and in creating an independent commission to safeguard these rights? It may of value to look back at the country's experience under the martial law regime which may have, in fact, impelled the inclusions of those provisions in our fundamental law. Many voices have been heard. Among those voices, aptly represented perhaps of the sentiments expressed by others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and an advocate of civil liberties, who, in his paper, entitled "Present State of Human Rights in the Philippines,"29 observes: But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights most of the human rights expressed in the International Covenant, these rights became unavailable upon the proclamation of Martial Law on 21 September 1972. Arbitrary action then became the rule. Individuals by the thousands became subject to arrest upon suspicion, and were detained and held for indefinite periods, sometimes for years, without charges, until ordered released by the Commander-inChief or this representative. The right to petition for the redress of grievances became useless, since group actions were forbidden. So were strikes. Press and other mass media were subjected to censorship and short term licensing. Martial law brought with it the suspension of the writ of habeas corpus, and judges lost independence and security of tenure, except members of the Supreme Court. They were required to submit letters of resignation and were dismissed upon the acceptance thereof. Torture to extort confessions were practiced as declared by international bodies like Amnesty International and the International Commission of Jurists. Converging our attention to the records of the Constitutional Commission, we can see the following discussions during its 26 August 1986 deliberations: MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of the importance of human rights and also because civil and political rights have been determined by many international covenants and human rights legislations in the Philippines, as well as the Constitution, specifically the Bill of Rights and subsequent legislation. Otherwise, if we cover such a wide territory in area, we might diffuse its impact and the precise nature of its task, hence, its effectivity would also be curtailed. So, it is important to delienate the parameters of its tasks so that the commission can be most effective. MR. BENGZON. That is precisely my difficulty because civil and political rights are very broad. The Article on the Bill of Rights covers civil and political rights. Every single right of an individual involves his civil right or his political right. So, where do we draw the line?

MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and Political Rights distinguished this right against torture. MR. BENGZON. So as to distinguish this from the other rights that we have? MR. GARCIA. Yes, because the other rights will encompass social and economic rights, and there are other violations of rights of citizens which can be addressed to the proper courts and authorities. xxx xxx xxx MR. BENGZON. So, we will authorize the commission to define its functions, and, therefore, in doing that the commission will be authorized to take under its wings cases which perhaps heretofore or at this moment are under the jurisdiction of the ordinary investigative and prosecutorial agencies of the government. Am I correct? MR. GARCIA. No. We have already mentioned earlier that we would like to define the specific parameters which cover civil and political rights as covered by the international standards governing the behavior of governments regarding the particular political and civil rights of citizens, especially of political detainees or prisoners. This particular aspect we have experienced during martial law which we would now like to safeguard. MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are really trying to say is, perhaps, at the proper time we could specify all those rights stated in the Universal Declaration of Human Rights and defined as human rights. Those are the rights that we envision here? MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our Constitution. They are integral parts of that. MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill of Rights covered by human rights? MR. GARCIA. No, only those that pertain to civil and political rights. xxx xxx xxx MR. RAMA. In connection with the discussion on the scope of human rights, I would like to state that in the past regime, everytime we invoke the violation of human rights, the Marcos regime came out with the defense that, as a matter of fact, they had defended the rights of people to decent living, food, decent housing and a life consistent with human dignity.

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

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

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

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

MR. SARMIENTO. Yes, Madam President. MR. GARCIA. I would like to continue and respond also to repeated points raised by the previous speaker.

xxx xxx xxx The PRESIDENT. Commissioner Guingona is recognized. MR. GUINGONA. Thank You Madam President. I would like to start by saying that I agree with Commissioner Garcia that we should, in order to make the proposed Commission more effective, delimit as much as possible, without prejudice to future expansion. The coverage of the concept and jurisdictional area of the term "human rights". I was actually disturbed this morning when the reference was made without qualification to the rights embodied in the universal Declaration of Human Rights, although later on, this was qualified to refer to civil and political rights contained therein. If I remember correctly, Madam President, Commissioner Garcia, after mentioning the Universal Declaration of Human Rights of 1948, mentioned or linked the concept of human right with other human rights specified in other convention which I do not remember. Am I correct? MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of 1985?

MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I was referring to an international instrument. MR. GUINGONA. I know. MR. GARCIA. But it does not mean that we will refer to each and every specific article therein, but only to those that pertain to the civil and politically related, as we understand it in this Commission on Human Rights. MR. GUINGONA. Madam President, I am not even clear as to the distinction between civil and social rights. MR. GARCIA. There are two international covenants: the International Covenant and Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The second covenant contains all the different rightsthe rights of labor to organize, the right to education, housing, shelter, et cetera. MR. GUINGONA. So we are just limiting at the moment the sense of the committee to those that the Gentlemen has specified. MR. GARCIA. Yes, to civil and political rights.

MR. GUINGONA. I do not know, but the commissioner mentioned another. MR. GARCIA. Madam President, the other one is the International Convention on Civil and Political Rights of which we are signatory. MR. GUINGONA. I see. The only problem is that, although I have a copy of the Universal Declaration of Human Rights here, I do not have a copy of the other covenant mentioned. It is quite possible that there are rights specified in that other convention which may not be specified here. I was wondering whether it would be wise to link our concept of human rights to general terms like "convention," rather than specify the rights contained in the convention. As far as the Universal Declaration of Human Rights is concerned, the Committee, before the period of amendments, could specify to us which of these articles in the Declaration will fall within the concept of civil and political rights, not for the purpose of including these in the proposed constitutional article, but to give the sense of the Commission as to what human rights would be included, without prejudice to expansion later on, if the need arises. For example, there was no definite reply to the question of Commissioner Regalado as to whether the right to marry would be considered a civil or a social right. It is not a civil right? MR. GARCIA. Madam President, I have to repeat the various specific civil and political rights that we felt must be envisioned initially by this provision — freedom from political detention and arrest prevention of torture, right to fair and public trials, as well as crimes involving disappearance, salvagings, hamlettings and collective violations. So, it is limited to politically related crimes precisely to protect the civil and political rights of a specific group of individuals, and therefore, we are not opening it up to all of the definite areas. MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer linking his concept or the concept of the Committee on Human Rights with the so-called civil or political rights as contained in the Universal Declaration of Human Rights.

MR. GUINGONA. Thank you. xxx xxx xxx SR. TAN. Madam President, from the standpoint of the victims of human rights, I cannot stress more on how much we need a Commission on Human Rights. . . . . . . human rights victims are usually penniless. They cannot pay and very few lawyers will accept clients who do not pay. And so, they are the ones more abused and oppressed. Another reason is, the cases involved are very delicate — torture, salvaging, picking up without any warrant of arrest, massacre — and the persons who are allegedly guilty are people in power like politicians, men in the military and big shots. Therefore, this Human Rights Commission must be independent. I would like very much to emphasize how much we need this commission, especially for the little Filipino, the little individual who needs this kind of help and cannot get it. And I think we should concentrate only on civil and political violations because if we open this to land, housing and health, we will have no place to go again and we will not receive any response. . . .30 (emphasis supplied) The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a provision empowering the Commission on Human Rights to "investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights" (Sec. 1). The term "civil rights,"31 has been defined as referring — (t)o those (rights) that belong to every citizen of the state or country, or, in wider sense, to all its inhabitants, and are not connected with the organization or administration of the government. They include the rights of property, marriage, equal protection of the laws, freedom of contract, etc. Or, as otherwise defined civil rights are rights appertaining to a person by virtue of his citizenship in a state or community. Such term may also refer, in its general sense, to rights capable of being enforced or redressed in a civil action.

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

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

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

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

Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily apparent that the delegates envisioned a Commission on Human Rights that would focus its attention to the more severe cases of human rights violations. Delegate Garcia, for instance, mentioned such areas as the "(1) protection of rights of political detainees, (2) treatment of prisoners and the prevention of tortures, (3) fair and public trials, (4) cases of disappearances, (5) salvagings and hamletting, and (6) other crimes committed against the religious." While the enumeration has not likely been meant to have any preclusive effect, more than just expressing a statement of priority, it is, nonetheless, significant for the tone it has set. In any event, the delegates did not apparently take comfort in peremptorily making a conclusive delineation of the CHR's scope of investigatorial jurisdiction. They have thus seen it fit to resolve, instead, that "Congress may provide for other cases of violations of human rights that should fall within the authority of the Commission, taking into account its recommendation."35 In the particular case at hand, there is no cavil that what are sought to be demolished are the stalls, sari-sari stores and carinderia, as well as temporary shanties, erected by private respondents on a land which is planned to be developed into a "People's Park". More than that, the land adjoins the North EDSA of Quezon City which, this Court can take judicial notice of, is a busy national highway. The consequent danger to life and limb is not thus to be likewise simply ignored. It is indeed paradoxical that a right which is claimed to have been violated is one that cannot, in the first place, even be invoked, if it is, in fact, extant. Be that as it may, looking at the standards hereinabove discoursed vis-a-vis the circumstances obtaining in this instance, we are not prepared to conclude that the order for the demolition of the stalls, sari-sari stores and carinderia of the private respondents can fall within the compartment of "human rights violations involving civil and political rights" intended by the Constitution. On its contempt powers, the CHR is constitutionally authorized to "adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court." Accordingly, the CHR acted within its authority in providing in its revised rules, its power "to cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court." That power to cite for contempt, however, should be understood to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out its investigatorial powers. To exemplify, the power to cite for contempt could be exercised against persons who refuse to cooperate with the said body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in pursuing its investigative work. The "order to desist" (a semantic interplay for a restraining order) in the instance before us, however, is not investigatorial in character but prescinds from an adjudicative power that it does not possess. In Export Processing Zone Authority vs. Commission on Human Rights,36 the Court, speaking through Madame Justice Carolina Griño-Aquino, explained: The constitutional provision directing the CHR to "provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection" may not be construed to confer jurisdiction on the Commission to issue a restraining order or writ of injunction for, it that were the intention, the Constitution would have expressly said so. "Jurisdiction is conferred only by the Constitution or by law". It is never derived by implication. Evidently, the "preventive measures and legal aid services" mentioned in the Constitution refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which the CHR may seek from proper courts on behalf of the victims of human rights violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of preliminary injunction may only be issued "by the judge of any court in which the action is pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme Court. . . . A writ of preliminary injunction is an ancillary remedy. It is available only in a pending principal action, for the preservation or protection of the rights and interests of a party thereto, and for no other purpose." (footnotes omitted).

The public respondent explains that this petition for prohibition filed by the petitioners has become moot and academic since the case before it (CHR Case No. 90-1580) has already been fully heard, and that the matter is merely awaiting final resolution. It is true that prohibition is a preventive remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an act already accomplished. 38 Here, however, said Commission admittedly has yet to promulgate its resolution in CHR Case No. 90-1580. The instant petition has been intended, among other things, to also prevent CHR from precisely doing that.39 WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on Human Rights is hereby prohibited from further proceeding with CHR Case No. 901580 and from implementing the P500.00 fine for contempt. The temporary restraining order heretofore issued by this Court is made permanent. No costs. SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Quiason and Puno, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-22554 August 29, 1975 DELFIN LIM and JIKIL TAHA, plaintiffs-appellants, vs. FRANCISCO PONCE DE LEON AND ORLANDO MADDELA, defendants-appellees. Ricardo L. Manalilig for plaintiffs-appellants. Iñigo R. Peña for defendants-appellees. MARTIN, J.: Appeal on a question of law from the decision of the Court of First Instance of Palawan in Civil Case No. 416, entitled "Delfin Lim and Jikil Taha vs. Francisco Ponce de Leon and Orlando Maddela", dismissing the complaint of the plaintiffs and ordering them to pay each of the defendants jointly and severally the sum of P500.00 by way of actual damages; P500.00 by way of attorney's fees; and P1,000.00 by way of exemplary damages. On April 29, 1961, plaintiff-appellant Jikil Taha sold to a certain Alberto Timbangcaya of Brooke's Point, Palawan a motor launch named M/L "SAN RAFAEL". A year later or on April 9, 1962 Alberto Timbangcaya filed a complaint with the Office of the Provincial Fiscal of Palawan alleging that after the sale Jikil Taha forcibly took away the motor launch from him. On May 14, 1962, after conducting a preliminary investigation, Fiscal Francisco Ponce de Leon in his capacity as Acting Provincial Fiscal of Palawan, filed with the Court of First Instance of Palawan the corresponding information for Robbery the Force and Intimidation upon Persons against Jikil Taha. The case was docketed as Criminal Case No. 2719. On June 15, 1962, Fiscal Francisco Ponce de Leon, upon being informed that the motor launch was in Balabac, Palawan, wrote the Provincial Commander of Palawan requesting him to direct the detachment commander-in Balabac to impound and take custody of the motor launch.1

by Jikil Taha to Alberto Timbangcaya on April 29, 1961 was sometime in April 1962, forcibly taken with violence upon persons and with intent to gain by Jikil Taha from Alfredo Timbangcaya without the latter's knowledge and consent, thus giving rise to the filing of a criminal charge of robbery against Jikil Taha; that Fiscal Ponce de Leon, in his capacity as Acting Provincial Fiscal of Palawan ordered Orlando Maddela to seize and impound the motor launch "SAN RAFAEL", for being the corpus delicti of the robbery; and that Orlando Maddela merely obeyed the orders of his superior officer to impound said launch. By way of counterclaim, defendants-appellees alleged that because of the malicious and groundless filing of the complaint by plaintiffs-appellants, they were constrained to engage the services of lawyers, each of them paying P500.00 as attorney's fees; and that they suffered moral damages in the amount of P5,000.00 each and actual damages in the amount of P500.00 each. They also prayed that each of them awarded exemplary damages in the amount of P1,000.00. On September 13, 1965, the trial court rendered its decision, upholding the validity of the seizure of the motor launch on the ground that "the authority to impound evidences or exhibits or corpus delicti in a case pending investigation is inherent in the Provincial Fiscal who controls the prosecution and who introduces those exhibits in the court." Accordingly, the trial court dismissed the complaint of plaintiffs-appellants and ordered them to pay jointly and severally each of the defendants-appellees the amount of P500.00 by way of actual damages another amount of P500.00 for attorney's fees and P1,000.00 as exemplary damages. Hence, this appeal. Two vital issues call for resolution by this Court. First, whether or not defendantappellee Fiscal Ponce de Leon had the power to order the seizure of the motor launch in question without a warrant of search and seizure even if the same was admittedly the corpus delicti of the crime. Second, whether or not defendants-appellees are civilly liable to plaintiffs-appellants for damages allegedly suffered by them granting that the seizure of the motor launch was unlawful. The gravamen of plaintiffs-appellants' argument is that the taking of the motor launch on July 6, 1962 by Orlando Maddela upon the order of Fiscal Ponce de Loon was in violation of the constitutional guarantee against unreasonable searches and seizures since it was done without a warrant. The pertinent provision of the Constitution then in force reads:

On June 26, 1962, Fiscal Ponce de Leon reiterated his request to the Provincial Commander to impound the motor launch, explaining that its subsequent sale to a third party, plaintiff-appellant Delfin Lim, cannot prevent the court from taking custody of the same.2 So, on July 6, 1962 upon order of the Provincial Commander, defendant-appellee Orlando Maddela, Detachment Commander of Balabac, Palawan, seized the motor launch "SAN RAFAEL" from plaintiff-appellant Delfin Lim and impounded it. On July 15, 1962 plaintiff-appellant Delfin Lim pleaded with Orlando Maddela to return the motor launch but the latter refused. Likewise, on September 20, 1962, Jikil Taha through his counsel made representations with Fiscal Ponce de Leon to return the seized property to plaintiff-appellant Delfin Lim but Fiscal Ponce de Leon refused, on the ground that the same was the subject of a criminal offense. All efforts to recover the motor launch going to naught, plaintiffs-appellants Delfin Lim and Jikil Taha, on November 19, 1962, filed with the Court of First Instance of Palawan a complaint for damages against defendants-appellees Fiscal Francisco Ponce de Leon and Orlando Maddela, alleging that on July 6, 1962 Orlando Maddela entered the premises of Delfin Lim without a search warrant and then and there took away the hull of the motor launch without his consent; that he effected the seizure upon order of Fiscal Ponce de Leon who knew fully well that his office was not vested with authority to order the seizure of a private property; that said motor launch was purchased by Delfin Lim from Jikil Taha in consideration of Three Thousand Pesos (P3,000.00), Two Thousand Pesos (P2,000.00) of which has been given to Jikil Taha as advance payment; that as a consequence of the unlawful seizure of the motor launch, its sale did not materialize; and that since July 6, 1962, the said motor launch had been moored at the Balabac Bay, Palawan and because of exposure to the elements it had become worthless and beyond repair. For the alleged violation of their constitutional rights, plaintiffs-appellants prayed that defendants-appellees be ordered to pay jointly and severally each of them the sum of P5,750.00 representing actual, moral and exemplary damages and attorney's fees. In their answer, defendants-appellees denied the material allegations of the complaint and as affirmative defenses alleged that the motor launch in question which was sold

3) The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized.3 A cursory reading of the above provision easily brings into focus the unreasonableness of the seizure of the aforementioned motor launch. A search and seizure to be reasonable, must be effected by means of a valid search warrant. And for a search warrant to be valid: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or 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 persons or things to be seized.4 Thus in a long line of decisions, this Court has declared invalid search warrants which were issued in utter disregard of the constitutional injunction.5 Defendants-appellees admitted that when Orlando Maddela entered the premises of Delfin Lim and impounded the motor launch he was not armed with a search warrant; that he effected the seizure of the motor launch in the absence of and without the consent of Delfin Lim. There can be no question that without the proper search warrant, no public official has the right to enter the premises of another without his consent for the purpose of search and seizure.6 And since in the present case defendants-appellees seized the motor launch without a warrant, they have violated the constitutional right of plaintiffs-appellants against unreasonable search and seizure. Defendants-appellees however would want to justify the seizure of the motor launch even without a warrant because of Fiscal Ponce de Leon's alleged inherent power to order the seizure of a personal property which is the corpus delicti of a crime, he being

a quasi judicial officer who has the control of the prosecution and the presentation of the evidence in the criminal case. They argue that inasmuch as the motor launch in question was allegedly stolen by Jikil Taha from Timbangcaya, Fiscal Ponce de Leon could order its seizure even without a search warrant. We cannot agree. Under the old Constitution7 the power to issue a search warrant is vested in a judge or magistrate and in no other officer and no search and seizure can be made without a proper warrant. At the time the act complained of was committed, there was no law or rule that recognized the authority of Provincial Fiscals to issue a search warrant. In his vain attempt to justify the seizure of the motor launch in question without a warrant Fiscal Ponce de Leon invoked the provisions of Republic Act No. 732, which amended Sections 1674 and 1687 of the Revised Administrative Code. But there is nothing in said law which confers upon the provincial fiscal; the authority to issue warrants, much less to order without warrant the seizure of a personal property even if it is the corpus delicti of a crime. True, Republic Act No. 732 has broadened the power of provincial fiscals to conduct preliminary investigations, but said law did not divest the judge or magistrate of its power to determine, before issuing the corresponding warrant, whether or not probable cause exists therefor.8 Moreover, under Sections 2 and 3 of Rule 122 of the Rules of Court 9 which complement the constitutional provision earlier cited, two principles are made clear, namely: (1) that in the seizure of a stolen property search warrant is still necessary; and (2) that in issuing a search warrant the judge alone determines whether or not there is a probable cause. The fact that a thing is a corpus delicti of a crime does not justify its seizure without a warrant. As held in U.S. v. de los Reyes and Esguerra, 10 citing McClurg v. Brenton: 11 The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to break in upon the privacy of a home and subject its occupant to the indignity of a search for the evidence of crime, without a legal warrant procured for that purpose. No amount of incriminating evidence whatever its source, will supply the place of such warrant. At the closed door of the home be it palace or hovel even bloodhounds must wait till the law, by authoritative process, bids it open. (Emphasis supplied.) Defendant-appellee Fiscal Ponce de Leon would also invoke lack of time to procure a search warrant as an excuse for the seizure of the motor launch without one. He claimed that the motor launch had to be seized immediately in order to preserve it and to prevent its removal out of the locality, since Balabac, Palawan, where the motor launch was at the time, could only be reached after three to four days' travel by boat. 12 The claim cannot be sustained. The records show that on June 15, 1962 13 Fiscal Ponce de Leon made the first request to the Provincial Commander for the impounding of the motor launch; and on June 26, 1962 14 another request was made. The seizure was not effected until July 6, 1962. In short, Fiscal Ponce de Leon had all the time to procure a search warrant had he wanted to and which he could have taken in less than a day, but he did not. Besides, there is no basis for the apprehension that the motor launch might be moved out of Balabac because even prior to its seizure the motor launch was already without its engine. 15 In sum, the fact that there was no time to secure a search warrant would not legally justify a search without one. 16 As to whether or not they are entitled to damages, plaintiffs-appellants anchor their claim for damages on Articles 32 and 2219 of the New Civil Code which provide in part as follows: 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. xxx xxx xxx (9) The rights to be secure in one's person, house, papers, and effects against unreasonable searches and seizures. xxx xxx xxx The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

ART. 2219. Moral damages may be recovered in the following and analogous cases: xxx xxx xxx (6) Illegal search; xxx xxx xxx (1) Acts and action referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34 and 35. Pursuant to the foregoing provisions, a person whose constitutional rights have been violated or impaired is entitled to actual and moral damages from the public officer or employee responsible therefor. In addition, exemplary damages may also be awarded. In the instant case, plaintiff-appellant Delfin Lim claimed that he purchased the motor launch from Jikil Taha in consideration of P3,000.00, having given P2,000.00 as advanced payment; that since or seizure on July 6, 1962 the motor launch had been moored at Balabac Bay and because of exposure to the elements it has become worthless at the time of the filing of the present action; that because of the illegality of the seizure of the motor launch, he suffered moral damages in the sum of P1,000.00; and that because of the violation of their constitutional rights they were constrained to engage the services of a lawyer whom they have paid P1,500.00 for attorney's fees. We find these claims of Delfin Lim amply supported by the evidence and therefore should be awarded the sum of P3,000.00 as actual damages; P1,000.00 as moral damages and P750.00 for attorney's fees. However, with respect co plaintiff Jikil Taha, he is not entitled to recover any damage which he alleged he had suffered from the unlawful seizure of the motor launch inasmuch as he had already transferred the ownership and possession of the motor launch to Delfin Lim at the time it was seized and therefore, he has no legal standing to question the validity of the seizure. Well settled is the rule that the legality of a seizure can be contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. 17 Consequently, one who is not the owner, lessee, or lawful occupant of the premise searched cannot raise the question of validity of the search and seizure. 18 Jikil Taha is not without recourse though. He can still collect from his co-plaintiff, Delfin Lim the unpaid balance of P1,000.00. Defendant-appellee Fiscal Ponce de Leon wanted to wash his hands of the incident by claiming that "he was in good faith, without malice and without the slightest intention of inflicting injury to plaintiff-appellant, Jikil Taha" 19when he ordered the seizure of the motor launch. We are not prepared to sustain his defense of good faith. To be liable under Article 32 of the New Civil Code it is enough that there was a violation of the constitutional rights of the plaintiffs and it is not required that defendants should have acted with malice or bad faith. Dr. Jorge Bocobo, Chairman of the Code Commission, gave the following reasons during the public hearings of the Joint Senate and House Committees, why good faith on the part of the public officer or employee is immaterial. Thus: DEAN BOCOBO. Article 32, regarding individual rights; Attorney Cirilo Paredes proposes that Article 32 be so amended as to make a public official liable for violation of another person's constitutional rights only if the public official acted maliciously or in bad faith. The Code Commission opposes this suggestion for these reasons: The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is the effective protection of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties. Precisely, the object of the Article is to put an end to official abuse by the plea of good faith. In the United States this remedy is in he nature of a tort. Mr. Chairman, this article is firmly one of the fundamental articles introduced in the New Civil Code to implement democracy. There is no real democracy if a public official is abusing, and we made the article so strong and so comprehensive that it concludes an abuse of individual rights even if done in good faith, that official is liable. As a matter of

fact, we know that there are very few public officials who openly and definitely abuse the individual rights of the citizens. In most cases, the abuse is justified on a plea of desire to enforce the law to comply with one's duty. And so, if we should limit the scope of this article, that would practically nullify the object of the article. Precisely, the opening object of the article is to put an end to abuses which are justified by a plea of good faith, which is in most cases the plea of officials abusing individual rights. 20 But defendant-appellee Orlando Maddela cannot be held accountable because he impounded the motor launch upon the order of his superior officer. While a subordinate officer may be held liable for executing unlawful orders of his superior officer, there are certain circumstances which would warrant Maddela's exculpation from liability. The records show that after Fiscal Ponce de Leon made his first request to the Provincial Commander on June 15, 1962 Maddela was reluctant to impound the motor launch despite repeated orders from his superior officer. 21 It was only after he was furnished a copy of the reply of Fiscal Ponce de Leon, dated June 26, 1962, to the letter of the Provincial Commander, justifying the necessity of the seizure of the motor launch on the ground that the subsequent sale of the launch to Delfin Lim could not prevent the court from taking custody of the same, 22 that he impounded the motor launch on July 6, 1962. With said letter coming from the legal officer of the province, Maddela was led to believe that there was a legal basis and authority to impound the launch. Then came the order of his superior officer to explain for the delay in the seizure of the motor launch. 23 Faced with a possible disciplinary action from his Commander, Maddela was left with no alternative but to seize the vessel. In the light of the above circumstances. We are not disposed to hold Maddela answerable for damages. IN VIEW OF THE FOREGOING, the decision appealed from is hereby reversed and another one entered declaring the seizure illegal and ordering defendant-appellee Fiscal Francisco Ponce de Leon to pay to plaintiff-appellant Delfin Lim the sum of P3,000.00 as actual damages, plus P1,000.00 moral damages, and, in addition, P750.00 for attorney's fees. With costs against defendant-appellee Fiscal Ponce de Leon. SO ORDERED. Castro (Chairman), Teehankee, Makasiar and Esguerra, JJ., concur. Muñoz Palma, J, is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-69866 April 15, 1988 ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO NOEL ETABAG DANILO DE LA FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN, ALAN JAZMINEZ, EDWIN LOPEZ, ALFREDO MANSOS, ALEX MARCELINO, ELIZABETH PROTACIO-MARCELINO, JOSEPH OLAYER, CARLOS PALMA, MARCO PALO, ROLANDO SALUTIN, BENJAMIN SESGUNDO, ARTURO TABARA, EDWIN TULALIAN and REBECCA TULALIAN petitioners, vs. MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL. ROLANDO ABADILLA, COL. GERARDO B. LANTORIA, COL. GALILEO KINTANAR, 1ST LT. COL. PANFILO M. LACSON, MAJ. RODOLFO AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT. PEDRO TANGO, 1ST LT. ROMEO RICARDO, 1ST LT. RAUL BACALSO, MSGT BIENVENIDO BALABA and REGIONAL TRIAL COURT, National Capital Judicial Region, Branch XCV (95), Quezon City, respondents.

YAP, J.: This petition for certiorari presents vital issues not heretofore passed upon by this Court. It poses the question whether the suspension of the privilege of the writ of habeas corpus bars a civil action for damages for illegal searches conducted by military personnel and other violations of rights and liberties guaranteed under the Constitution. If such action for damages may be maintained, who can be held liable for such violations: only the military personnel directly involved and/or their superiors as well. This case stems from alleged illegal searches and seizures and other violations of the rights and liberties of plaintiffs by various intelligence units of the Armed Forces of the Philippines, known as Task Force Makabansa (TFM) ordered by General Fabian Ver "to conduct pre-emptive strikes against known communist-terrorist (CT) underground houses in view of increasing reports about CT plans to sow disturbances in Metro Manila," Plaintiffs allege, among others, that complying with said order, elements of the TFM raided several places, employing in most cases defectively issued judicial search warrants; that during these raids, certain members of the raiding party confiscated a number of purely personal items belonging to plaintiffs; that plaintiffs were arrested without proper warrants issued by the courts; that for some period after their arrest, they were denied visits of relatives and lawyers; that plaintiffs were interrogated in violation of their rights to silence and counsel; that military men who interrogated them employed threats, tortures and other forms of violence on them in order to obtain incriminatory information or confessions and in order to punish them; that all violations of plaintiffs constitutional rights were part of a concerted and deliberate plan to forcibly extract information and incriminatory statements from plaintiffs and to terrorize, harass and punish them, said plans being previously known to and sanctioned by defendants. Plaintiffs sought actual/compensatory damages amounting to P39,030.00; moral damages in the amount of at least P150,000.00 each or a total of P3,000,000.00; exemplary damages in the amount of at least P150,000.00 each or a total of P3,000,000.00; and attorney's fees amounting to not less than P200,000.00. A motion to dismiss was filed by defendants, through their counsel, then SolicitorGeneral Estelito Mendoza, alleging that (1) plaintiffs may not cause a judicial inquiry into the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas corpus is suspended; (2) assuming that the courts can entertain the present action, defendants are immune from liability for acts done in the performance of their official duties; and (3) the complaint states no cause of action against the defendants. Opposition to said motion to dismiss was filed by plaintiffs Marco Palo, Danilo de la Fuente, Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and Rolando Salutin on July 8, 1983, and by plaintiffs Edwin Lopez, Manuel Mario Guzman, Alan Jasminez, Nestor Bodino, Carlos Palma, Arturo Tabara, Joseph Olayer, Rodolfo Benosa, Belen Diaz, Flores, Rogelio Aberca, Alex Marcelino and Elizabeth Marcelino on July 21, 1983. On November 7, 1983, a Consolidated Reply was filed by defendants' counsel. Then, on November 8, 1983, the Regional Trial Court, National Capital Region, Branch 95, Judge Willelmo C. Fortun, Presiding, 1 issued a resolution granting the motion to dismiss. I sustained, lock, stock and barrel, the defendants' contention (1) the plaintiffs may not cause a judicial inquiry into the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas corpus is suspended; (2) that assuming that the court can entertain the present action,

defendants are immune from liability for acts done in the performance of their official duties; and (3) that the complaint states no cause of action against defendants, since there is no allegation that the defendants named in the complaint confiscated plaintiffs' purely personal properties in violation of their constitutional rights, and with the possible exception of Major Rodolfo Aguinaldo and Sergeant Bienvenido Balabo committed acts of torture and maltreatment, or that the defendants had the duty to exercise direct supervision and control of their subordinates or that they had vicarious liability as employers under Article 2180 of the Civil Code. The lower court stated, "After a careful study of defendants' arguments, the court finds the same to be meritorious and must, therefore, be granted. On the other hand, plaintiffs' arguments in their opposition are lacking in merit." A motion to set aside the order dismissing the complaint and a supplemental motion for reconsideration was filed by the plaintiffs on November 18, 1983, and November 24, 1983, respectively. On December 9, 1983, the defendants filed a comment on the aforesaid motion of plaintiffs, furnishing a copy thereof to the attorneys of all the plaintiffs, namely, Attys. Jose W. Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Auguso Sanchez, Antonio L. Rosales, Pedro B. Ella Jr., Arno V. Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas Aquino. On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting himself from further proceeding in the case and leaving the resolution of the motion to set aside the order of dismissal to Judge Lising, "to preclude any suspicion that he (Judge Fortun) cannot resolve [the] aforesaid pending motion with the cold neutrality of an impartial judge and to put an end to plaintiffs assertion that the undersigned has no authority or jurisdiction to resolve said pending motion." This order prompted plaintiffs to reesolve an amplificatory motion for reconsideration signed in the name of the Free Legal Assistance Group (FLAG) of Mabini Legal Aid Committee, by Attys. Joker P. Arroyo, Felicitas Aquino and Arno Sanidad on April 12, 1984. On May 2,1984, the defendants filed a comment on said amplificatory motion for reconsideration. In an order dated May 11, 1984, the trial court, Judge Esteban Lising, Presiding, without acting on the motion to set aside order of November 8, 1983, issued an order, as follows: It appearing from the records that, indeed, the following plaintiffs, Rogelio Aberca, Danilo de la Fuente and Marco Palo, represented by counsel, Atty. Jose W. Diokno, Alan Jasminez represented by counsel, Atty. Augusta Sanchez, Spouses Alex Marcelino and Elizabeth Protacio-Marcelino, represented by counsel, Atty. Procopio Beltran, Alfredo Mansos represented by counsel, Atty. Rene Sarmiento, and Rolando Salutin, represented by counsel, Atty. Efren Mercado, failed to file a motion to reconsider the Order of November 8, 1983, dismissing the complaint, nor interposed an appeal therefrom within the reglementary period, as prayed for by the defendants, said Order is now final against said plaintiffs. Assailing the said order of May 11, 1984, the plaintiffs filed a motion for reconsideration on May 28,1984, alleging that it was not true that plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin failed to file a motion to reconsider the order of November 8, 1983 dismissing the complaint, within the reglementary period. Plaintiffs claimed that the motion to set aside the order of November 8, 1983 and the amplificatory motion for reconsideration was filed for all the plaintiffs, although signed by only some of the lawyers. In its resolution of September 21, 1984, the respondent court dealt with both motions (1) to reconsider its order of May 11, 1984 declaring that with respect to certain plaintiffs, the resolution of November 8, 1983 had already become final, and (2) to set aside its resolution of November 8, 1983 granting the defendants' motion to dismiss. In the dispositive portion of the order of September 21, 1984, the respondent court resolved: (1) That the motion to set aside the order of finality, dated May 11, 1984, of the Resolution of dismissal of the complaint of plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin is deed for lack of merit; (2) For lack of cause of action as against the following defendants, to wit:

1. Gen Fabian Ver

(7) of law;

2. Col. Fidel Singson

(8) The right to a just compensation when private property is taken for public use;

3. Col. Rolando Abadilla (9) The right to the equal protection of the laws; 4. Lt. Col. Conrado Lantoria, Jr. 5. Col. Galileo Montanar 6. Col. Panfilo Lacson 7. Capt. Danilo Pizaro 8. 1 Lt Pedro Tango 9. Lt. Romeo Ricardo

(10) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (11) The liberty of abode and of changing the same; (12) The privacy of cmmunication and correspondence; (13) The right to become a member of associations or societies for purposes not contrary to law; (14) The right to take part in a peaceable assembly to petition the Government for redress of grievances;

10. Lt. Raul Bacalso the motion to set aside and reconsider the Resolution of dismissal of the present action or complaint, dated November 8, 1983, is also denied but in so far as it affects and refers to defendants, to wit: 1. Major Rodolfo Aguinaldo, and 2. Master Sgt. Bienvenido Balaba the motion to reconsider and set aside the Resolution of dismissal dated November 3, 1983 is granted and the Resolution of dismissal is, in this respect, reconsidered and modified. Hence, petitioners filed the instant petition for certiorari on March 15, 1985 seeking to annul and set aside the respondent court's resolution of November 8, 1983, its order of May 11, 1984, and its resolution dated September 21, 1984. Respondents were required to comment on the petition, which it did on November 9, 1985. A reply was filed by petitioners on August 26, 1986.

(15) The right to be free from involuntary servitude in any form; (16) The rigth of the accused against excessive bail; (17) The rigth of the aaccused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in behalf; (18) Freedom from being compelled to be a witness against ones self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (19) Freedom from excessive fines or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

We find the petition meritorious and decide to give it due course. (20) Freedom of access to the courts. At the heart of petitioners' complaint is Article 32 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: (1) Freedom of religion;

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the against grieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

(2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield — borrowing the words of Chief Justice Claudio Teehankee — to the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule of law compels us to reject

the view which reduces law to nothing but the expression of the will of the predominant power in the community. "Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom it is made. Now this respect implies a maximum of faith, a minimum of Idealism. On going to the bottom of the matter, we discover that life demands of us a certain residuum of sentiment which is not derived from reason, but which reason nevertheless controls. 2 Seeking to justify the dismissal of plaintiffs' complaint, the respondents postulate the view that as public officers they are covered by the mantle of state immunity from suit for acts done in the performance of official duties or function In support of said contention, respondents maintain that — Respondents are members of the Armed Forces of the Philippines. Their primary duty is to safeguard public safety and order. The Constitution no less provides that the President may call them "to prevent or supress lawless violence, invasion, insurrection or rebellion, or imminent danger thereof." (Constitution, Article VII, Section 9). On January 17, 1981, the President issued Proclamation No. 2045 lifting martial law but providing for the continued suspension of the privilege of the writ of habeas corpus in view of the remaining dangers to the security of the nation. The proclamation also provided "that the call to the Armed Forces of the Philippines to prevent or suppress lawless violence, insuitection rebellion and subversion shall continue to be in force and effect." Petitioners allege in their complaint that their causes of action proceed from respondent General Ver's order to Task Force Makabansa to launch pre-emptive strikes against communist terrorist underground houses in Metro Manila. Petitioners claim that this order and its subsequent implementation by elements of the task force resulted in the violation of their constitutional rights against unlawful searches, seizures and arrest, rights to counsel and to silence, and the right to property and that, therefore, respondents Ver and the named members of the task force should be held liable for damages. But, by launching a pre-emptive strike against communist terrorists, respondent members of the armed forces merely performed their official and constitutional duties. To allow petitioners to recover from respondents by way of damages for acts performed in the exercise of such duties run contrary to the policy considerations to shield respondents as public officers from undue interference with their duties and from potentially disabling threats of hability (Aarlon v. Fitzgerald 102 S. Ct. 2731-1 Forbes v. Chuoco Tiaco, 16 Phil. 634), and upon the necessity of protecting the performance of governmental and public functions from being harassed unduly or constantly interrupted by private suits (McCallan v. State, 35 Cal. App. 605; Metran v. Paredes, 79 Phil. 819). xxx xxx xxx The immunity of public officers from liability arising from the performance of their duties is now a settled jurisprudence Alzua v. Johnson, 21 Phil. 308; Zulueta v. Nicolas, 102 Phil. 944; Spalding v. Vilas, 161 US 483; 40 L. Ed. 780, 16 S. Ct. 631; Barr v. Mateo, 360; Butz v. Economon, 438 US 478; 57 L. Ed. 2d 895, 98 S. Ct. 2894; Scheuer v. Rhodes, 416 US 232; Forbes v. Chuoco Tiaco, supra; Miller v. de Leune, 602 F. 2d 198; Sami v. US, 617 F. 2d 755). Respondents-defendants who merely obeyed the lawful orders of the President and his call for the suppression of the rebellion involving petitioners enjoy such immunity from Suit.3 We find respondents' invocation of the doctrine of state immunity from suit totally misplaced. The cases invoked by respondents actually involved acts done by officers in

the performance of official duties written the ambit of their powers. As held in Forbes, etc. vs. Chuoco Tiaco and Crossfield: 4 No one can be held legally responsible in damages or otherwise for doing in a legal manner what he had authority, under the law, to do. Therefore, if the Governor-General had authority, under the law to deport or expel the defendants, and circumstances justifying the deportation and the method of carrying it out are left to him, then he cannot be held liable in damages for the exercise of this power. Moreover, if the courts are without authority to interfere in any manner, for the purpose of controlling or interferring with the exercise of the political powers vested in the chief executive authority of the Government, then it must follow that the courts cannot intervene for the purpose of declaring that he is liable in damages for the exeercise of this authority. It may be that the respondents, as members of the Armed Forces of the Philippines, were merely responding to their duty, as they claim, "to prevent or suppress lawless violence, insurrection, rebellion and subversion" in accordance with Proclamation No. 2054 of President Marcos, despite the lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch pre- emptive strikes against alleged communist terrorist underground houses. But this cannot be construed as a blanket license or a roving commission untramelled by any constitutional restraint, to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and protected by the Constitution. The Constitution remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience and allegiance at all times. Article 32 of the Civil Code which renders any public officer or employee or any private individual liable in damages for violating the Constitutional rights and liberties of another, as enumerated therein, does not exempt the respondents from responsibility. Only judges are excluded from liability under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute. This is not to say that military authorities are restrained from pursuing their assigned task or carrying out their mission with vigor. We have no quarrel with their duty to protect the Republic from its enemies, whether of the left or of the right, or from within or without, seeking to destroy or subvert our democratic institutions and imperil their very existence. What we are merely trying to say is that in carrying out this task and mission, constitutional and legal safeguards must be observed, otherwise, the very fabric of our faith will start to unravel. In the battle of competing Ideologies, the struggle for the mind is just as vital as the struggle of arms. The linchpin in that psychological struggle is faith in the rule of law. Once that faith is lost or compromised, the struggle may well be abandoned. We do not find merit in respondents' suggestion that plaintiffs' cause of action is barred by the suspension of the privilege of the writ of habeas corpus. Respondents contend that "Petitioners cannot circumvent the suspension of the privilege of the writ by resorting to a damage suit aimed at the same purpose-judicial inquiry into the alleged illegality of their detention. While the main relief they ask by the present action is indemnification for alleged damages they suffered, their causes of action are inextricably based on the same claim of violations of their constitutional rights that they invoked in the habeas corpus case as grounds for release from detention. Were the petitioners allowed the present suit, the judicial inquiry barred by the suspension of the privilege of the writ will take place. The net result is that what the courts cannot do, i.e. override the suspension ordered by the President, petitioners will be able to do by the mere expedient of altering the title of their action." We do not agree. We find merit in petitioners' contention that the suspension of the privilege of the writ of habeas corpus does not destroy petitioners' right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights. The suspension does not render valid an otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek release from detention through the writ of habeas corpus as a speedy means of obtaining his liberty. Moreover, as pointed out by petitioners, their right and cause of action for damages are explicitly recognized in P.D. No. 1755 which amended Article 1146 of the Civil Code by adding the following to its text: However, when the action (for injury to the rights of the plaintiff or for a quasi-delict) arises from or out of any act,

activity or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year. Petitioners have a point in contending that even assuming that the suspension of the privilege of the writ of habeas corpus suspends petitioners' right of action for damages for illegal arrest and detention, it does not and cannot suspend their rights and causes of action for injuries suffered because of respondents' confiscation of their private belongings, the violation of their right to remain silent and to counsel and their right to protection against unreasonable searches and seizures and against torture and other cruel and inhuman treatment. However, we find it unnecessary to address the constitutional issue pressed upon us. On March 25, 1986, President Corazon C. Aquino issued Proclamation No. 2, revoking Proclamation Nos. 2045 and 2045-A and lifting the suspension of the privilege of the writ of habeas corpus. The question therefore has become moot and academic. This brings us to the crucial issue raised in this petition. May a superior officer under the notion of respondent superior be answerable for damages, jointly and severally with his subordinates, to the person whose constitutional rights and liberties have been violated? Respondents contend that the doctrine of respondent superior is applicable to the case. We agree. The doctrine of respondent superior has been generally limited in its application to principal and agent or to master and servant (i.e. employer and employee) relationship. No such relationship exists between superior officers of the military and their subordinates. Be that as it may, however, the decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person 'directly' or "indirectly" responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party. By this provision, the principle of accountability of public officials under the Constitution 5 acquires added meaning and asgilrnes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be go naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no ones terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors. In the case at bar, the trial court dropped defendants General Fabian Ver, Col. Fidel Singson, Col. Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col. Galileo Kintanar, Col. Panfilo Lacson, Capt. Danilo Pizarro, lst Lt. Pedro Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from the acts of their subordinates. Only Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba were kept as defendants on the ground that they alone 'have been specifically mentioned and Identified to have allegedly caused injuries on the persons of some of the plaintiff which acts of alleged physical violence constitute a delict or wrong that gave rise to a cause of action. But such finding is not supported by the record, nor is it in accord with law and jurisprudence. Firstly, it is wrong to at the plaintiffs' action for damages 5 Section 1, Article 19. to 'acts of alleged physical violence" which constituted delict or wrong. Article 32 clearly specifies as actionable the act of violating or in any manner impeding or impairing any of the constitutional rights and liberties enumerated therein, among others — 1. Freedom from arbitrary arrest or illegal detention; 2. The right against deprivation of property without due process of law; 3. The right to be secure in one's person, house, papers and effects against unreasonable searches and seizures;

4. The privacy of communication and correspondence; 5. Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make a confession, except when the person confessing becomes a state witness. The complaint in this litigation alleges facts showing with abundant clarity and details, how plaintiffs' constitutional rights and liberties mentioned in Article 32 of the Civil Code were violated and impaired by defendants. The complaint speaks of, among others, searches made without search warrants or based on irregularly issued or substantially defective warrants; seizures and confiscation, without proper receipts, of cash and personal effects belonging to plaintiffs and other items of property which were not subversive and illegal nor covered by the search warrants; arrest and detention of plaintiffs without warrant or under irregular, improper and illegal circumstances; detention of plaintiffs at several undisclosed places of 'safehouses" where they were kept incommunicado and subjected to physical and psychological torture and other inhuman, degrading and brutal treatment for the purpose of extracting incriminatory statements. The complaint contains a detailed recital of abuses perpetrated upon the plaintiffs violative of their constitutional rights. Secondly, neither can it be said that only those shown to have participated "directly" should be held liable. Article 32 of the Civil Code encompasses within the ambit of its provisions those directly, as well as indirectly, responsible for its violation. The responsibility of the defendants, whether direct or indirect, is amply set forth in the complaint. It is well established in our law and jurisprudence that a motion to dismiss on the ground that the complaint states no cause of action must be based on what appears on the face of the complaint. 6 To determine the sufficiency of the cause of action, only the facts alleged in the complaint, and no others, should be considered. 7 For this purpose, the motion to dismiss must hypothetically admit the truth of the facts alleged in the complaint. 8 Applying this test, it is difficult to justify the trial court's ruling, dismissing for lack of cause of action the complaint against all the defendants, except Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba. The complaint contained allegations against all the defendants which, if admitted hypothetically, would be sufficient to establish a cause or causes of action against all of them under Article 32 of the Civil Code. This brings us to the last issue. Was the trial court correct in dismissing the complaint with respect to plaintiffs Rogelio Aberca, Danilo de la Puente, Marco Palo, Alan Jazminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin, on the basis of the alleged failure of said plaintiffs to file a motion for reconsideration of the court's resolution of November 8, 1983, granting the respondent's motion to dismiss? It is undisputed that a timely motion to set aside said order of November 8, 1983 was filed by 'plaintiffs, through counsel. True, the motion was signed only by Atty. Joker P. Arroyo, counsel for Benjamin Sesgulido; Atty. Antonio Rosales, counsel for Edwin Lopez and Manuel Martin Guzman; Atty. Pedro B. Ella, Jr., counsel for Nestor Bodino and Carlos Palma; Atty. Arno V. Sanidad, counsel for Arturo Tabara; Atty. Felicitas S. Aquino, counsel for Joseph Olayer; and Atty. Alexander Padilla, counsel for Rodolfo Benosa. But the body of the motion itself clearly indicated that the motion was filed on behalf of all the plaintiffs. And this must have been also the understanding of defendants' counsel himself for when he filed his comment on the motion, he furnished copies thereof, not just to the lawyers who signed the motion, but to all the lawyers of plaintiffs, to wit: Attys. Jose Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Augusto Sanchez, Antonio Rosales, Pedro Efla Jr., Arno Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas S. Aquino. In filing the motion to set aside the resolution of November 8, 1983, the signing attorneys did so on behalf of all the plaintiff. They needed no specific authority to do that. The authority of an attorney to appear for and in behalf of a party can be assumed, unless questioned or challenged by the adverse party or the party concerned, which was never done in this case. Thus, it was grave abuse on the part of respondent judge to take it upon himself to rule that the motion to set aside the order of November 8, 1953 dismissing the complaint was filed only by some of the plaintiffs, when by its very language it was clearly intended to be filed by and for the benefit of

all of them. It is obvious that the respondent judge took umbrage under a contrived technicality to declare that the dismissal of the complaint had already become final with respect to some of the plaintiffs whose lawyers did not sign the motion for reconsideration. Such action tainted with legal infirmity cannot be sanctioned. Accordingly, we grant the petition and annul and set aside the resolution of the respondent court, dated November 8, 1983, its order dated May 11, 1984 and its resolution dated September 21, 1984. Let the case be remanded to the respondent court for further proceedings. With costs against private respondents. SO ORDERED. Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur. Gutierrez, Jr., J., concur in the result. Padilla, J., took no part.

4. P5,000.00 for and as attorney's fees and litigation expenses.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 86720 September 2, 1994 MHP GARMENTS, INC., and LARRY C. DE GUZMAN, petitioners, vs. THE HONORABLE COURT OF APPEALS, AGNES VILLA CRUZ, MIRASOL LUGATIMAN, and GERTRUDES GONZALES, respondents. Benjamin M. Dacanay for petitioners. Emmanuel O. Tansingco for private respondents.

Costs against the defendants. SO ORDERED. The decision was appealed to the respondent court. On January 18, 1989, its Fifth Division, 5 affirmed the Decision with modification, thus: WHEREFORE, the decision appealed from is AFFIRMED with MODIFICATION; and, as modified, the dispositive portion thereof now reads as follows:

PUNO, J.: Judgment is hereby rendered in favor of plaintiffs (private respondents) and against defendants (petitioners), ordering the latter jointly and severally;

The constitutional protection of our people against unreasonable search and seizure is not merely a pleasing platitude. It vouchsafes our right to privacy and dignity against undesirable intrusions committed by any public officer or private individual. An infringement of this right justifies an award for damages.

1. To return the amount of P3,100.00 to plaintiff (respondent) Mirasol Lugatiman and cancel her application for distributor's license;

On February 22, 1983, petitioner MHP Garments, Inc., was awarded by the Boy Scouts of the Philippines, the exclusive franchise to sell and distribute official Boy Scouts uniforms, supplies, badges, and insignias. In their Memorandum Agreement, petitioner corporation was given the authority to "undertake or cause to be undertaken the prosecution in court of all illegal sources of scout uniforms and other scouting supplies." 1

2. To pay plaintiff (respondent) Agnes Villa Cruz the sum of P2,000.00 for the unreturned 26 pieces of girl scouts items with interest at 12% per annum from June 4, 1984 (date the complaint was filed) until it is fully paid;

Sometime in October 1983, petitioner corporation received information that private respondents Agnes Villa Cruz, Mirasol Lugatiman, and Gertrudes Gonzales were selling Boy Scouts items and paraphernalia without any authority. Petitioner de Guzman, an employee of petitioner corporation, was tasked to undertake the necessary surveillance and to make a report to the Philippine Constabulary (PC).

3. To pay plaintiffs (respondents) the amount of P10,000.00 each, or a total of P30,000.00, for and as moral damages; and P5,000.00 each, or a total of P15,000.00, for and as exemplary damages; and 4. To pay plaintiffs (respondents) P5,000.00 for and as attorney's fees and litigation expenses.

On October 25, 1983, at about 10:30 A.M., petitioner de Guzman, Captain Renato M. Peñafiel, and two (2) other constabulary men of the Reaction Force Battalion, Sikatuna Village, Diliman, Quezon City went to the stores of respondents at the Marikina Public Market. Without any warrant, they seized the boy and girl scouts pants, dresses, and suits on display at respondents' stalls. The seizure caused a commotion and embarrassed private respondents. Receipts were issued for the seized items. The items were then turned over by Captain Peñafiel to petitioner corporation for safekeeping.

Costs of the case a quo and the instant appeal are assessed jointly and severally against defendants-appellants (petitioners) MHP Garments, Inc. and Larry de Guzman. SO ORDERED.

A criminal complaint for unfair competition was then filed against private respondents. 2 During its pendency, petitioner de Guzman exacted from private respondent Lugatiman the sum of THREE THOUSAND ONE HUNDRED PESOS (P3,100.00) in order to be dropped from the complaint. On December 6, 1983, after a preliminary investigation, the Provincial Fiscal of Rizal dismissed the complaint against all the private respondents. On February 6, 1984, he also ordered the return of the seized items. The seized items were not immediately returned despite demands. 3 Private respondents had to go personally to petitioners' place of business to recover their goods. Even then, not all the seized items were returned. The other items returned were of inferior quality.

In this petition for certiorari, petitioners contend: FIRST ASSIGNMENT OF ERROR THE COURT OF APPEALS ERRED IN IMPUTING LIABILITY FOR DAMAGES TO THE PETITIONERS WHO DID NOT EFFECT THE SEIZURE OF THE SUBJECT MERCHANDISE. SECOND ASSIGNMENT OF ERROR

Private respondents then filed Civil Case No. 51144 against the petitioners for sums of money and damages. 4 In its Decision dated January 9, 1987, the trial court ruled for the private respondents, thus:

THE COURT OF APPEALS ERRED WHEN IT MADE A FINDING THAT THE MANNER WITH WHICH THE CONFISCATION OF PRIVATE RESPONDENTS WAS TORTIOUS BUT PENALIZED INSTEAD THE PETITIONERS WHO DID NOT COMMIT THE ACT OF CONFISCATION.

WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against defendants, ordering the latter jointly and severally:

THIRD ASSIGNMENT OF ERROR

1. To return the amount of P3,100.00 to plaintiff Mirasol Lugatiman with interest at 12% per annum from January 12, 1984, the date of the last receipt issued, until fully paid;

THE COURT OF APPEALS ERRED WHEN IT FOUND FOR THE PRIVATE RESPONDENTS AND AGAINST THE PETITIONERS.

2. To pay plaintiff Agnes Villa Cruz the sum of P2,000.00 for the 26 pieces of girl scout items not returned;

We affirm.

3. To pay plaintiffs the amount of P50,000.00 for and as moral damages and P15,000.00 for and as exemplary damages; and

Article III, section 2, of the Constitution protects our people from unreasonable search and seizure. It provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature 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. This provision protects not only those who appear to be innocent but also those who appear to be guilty but are nevertheless to be presumed innocent until the contrary is proved. 6 In the case at bench, the seizure was made without any warrant. Under the Rules of Court, 7 a warrantless search can only be undertaken under the following circumstance: Sec. 12. Search incident to a lawful arrest. - A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. We hold that the evidence did not justify the warrantless search and seizure of private respondents' goods. Petitioner corporation received information that private respondents were illegally selling Boy Scouts items and paraphernalia in October 1983. The specific date and time are not established in the evidence adduced by the parties. Petitioner de Guzman then made a surveillance of the stores of private respondents. They reported to the Philippine Constabulary and on October 25, 1983, the raid was made on the stores of private respondents and the supposed illicit goods were seized. The progression of time between the receipt of the information and the raid of the stores of private respondents shows there was sufficient time for petitioners and the PC raiding party to apply for a judicial warrant. Despite the sufficiency of time, they did not apply for a warrant and seized the goods of private respondents. In doing so, they took the risk of a suit for damages in case the seizure would be proved to violate the right of private respondents against unreasonable search and seizure. In the case at bench, the search and seizure were clearly illegal. There was no probable cause for the seizure. Probable cause for a search 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." 8 These facts and circumstances were not in any way shown by the petitioners to justify their warrantless search and seizure. Indeed, after a preliminary investigation, the Provincial Fiscal of Rizal dismissed their complaint for unfair competition and later ordered the return of the seized goods. Petitioners would deflect their liability with the argument that it was the Philippine Constabulary that conducted the raid and their participation was only to report the alleged illegal activity of private respondents. While undoubtedly, the members of the PC raiding team should have been included in the complaint for violation of the private respondents' constitutional rights, still, the omission will not exculpate petitioners. In the case of Lim vs. Ponce de Leon, 9 we ruled for the recovery of damages for violation of constitutional rights and liberties from public officer or private individual, thus: 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. xxx xxx xxx (9) The rights to be secure in one's person, house, papers, and effects against unreasonable searches and seizures. xxx xxx xxx The indemnity shall include moral damages. Exemplary damages may also be adjudged.

Art. 2219. Moral damages may be recovered in the following and analogous cases: xxx xxx xxx (6) Illegal search; (1) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. Pursuant to the foregoing provisions, a person whose constitutional rights have been violated or impaired is entitled to actual and moral damages from the public officer or employee responsible therefor. In addition, exemplary damages may also be awarded. xxx xxx xxx The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is the effective protection of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties. Precisely, the object of the Article is to put an end to official abuse by plea of the good faith. In the United States this remedy is in the nature of a tort. (emphasis supplied) In the subsequent case of Aberca vs. Ver, 10 the Court En Banc explained the liability of persons indirectly responsible, viz: [T]he decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person "directly or indirectly" responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e., the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party. xxx xxx xxx While it would certainly be too naive to expect that violators of human rights would easily be deterred by the prospect of facing damages suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors. xxx xxx xxx [N]either can it be said that only those shown to have participated "directly" should be held liable. Article 32 of the Civil Code encompasses within the ambit of its provisions those directly, as well as indirectly, responsible for its violations. (emphasis supplied) Applying the aforecited provisions and leading cases, the respondent court correctly granted damages to private respondents. Petitioners were indirectly involved in transgressing the right of private respondents against unreasonable search and seizure. Firstly, they instigated the raid pursuant to their covenant in the Memorandum Agreement to undertake the prosecution in court of all illegal sources of scouting supplies. 11 As correctly observed by respondent court: Indeed, the acts committed by the PC soldiers of unlawfully seizing appellees' (respondents') merchandise and of filing the criminal complaint for unfair competition against appellees (respondents) were for the protection and benefit of appellant (petitioner) corporation. Such being the case, it is, thus,

reasonably fair to infer from those acts that it was upon appellant (petitioner) corporation's instance that the PC soldiers conducted the raid and effected the illegal seizure. These circumstances should answer the trial court's query — posed in its decision now under consideration — as to why the PC soldiers immediately turned over the seized merchandise to appellant (petitioner) corporation. 12

I felt very nervous. I was crying and I was very much ashamed because many people have been watching the PC soldiers hauling my items, and many/I (sic) heard say "nakaw pala ang mga iyan" for which I am claiming P25,000.00 for damages.19 While respondent Gonzalez stated thus: I do not like the way the raid was conducted by the team sir because it looked like that what I have been selling were stolen items that they should be confiscated by uniformed soldiers. Many people were around and the more the confiscation was made in a scandalous manner; every clothes, T-shirts, pants and dresses even those not wrapped dropped to the ground. I was terribly shamed in the presence of market goers that morning.20

The raid was conducted with the active participation of their employee. Larry de Guzman did not lift a finger to stop the seizure of the boy and girl scouts items. By standing by and apparently assenting thereto, he was liable to the same extent as the officers themselves. 13 So with the petitioner corporation which even received for safekeeping the goods unreasonably seized by the PC raiding team and de Guzman, and refused to surrender them for quite a time despite the dismissal of its complaint for unfair competition. Secondly, Letter of Instruction No. 1299 was precisely crafted on March 9, 1983 to safeguard not only the privilege of franchise holder of scouting items but also the citizen's constitutional rights, to wit: TITLE: APPREHENSION OF UNAUTHORIZED MANUFACTURERS AND DISTRIBUTORS OF SCOUT PARAPHERNALIA AND IMPOUNDING OF SAID PARAPHERNALIA. ABSTRACT: Directs all law enforcement agencies of the Republic of the Philippines, to apprehend immediately unauthorized manufacturers and distributors of Scout paraphernalia, upon proper application by the Boy Scouts of the Philippines and/or Girl Scouts of the Philippines for warrant of arrest and/or search warrant with a judge, or such other responsible officer as may be authorized by law; and to impound the said paraphernalia to be used as evidence in court or other appropriate administrative body. Orders the immediate and strict compliance with the Instructions. 14 Under the above provision and as aforediscussed, petitioners miserably failed to report the unlawful peddling of scouting goods to the Boy Scouts of the Philippines for the proper application of a warrant. Private respondents' rights are immutable and cannot be sacrificed to transient needs. 15 Petitioners did not have the unbridled license to cause the seizure of respondents' goods without any warrant. And thirdly, if petitioners did not have a hand in the raid, they should have filed a third-party complaint against the raiding team for contribution or any other relief, 16 in respect of respondents' claim for Recovery of Sum of Money with Damages. Again, they did not. We have consistently ruled that moral damages are not awarded to penalize the defendant but to compensate the plaintiff for the injuries he may have suffered. 17 Conformably with our ruling in Lim vs. Ponce de Leon, op. cit., moral damages can be awarded in the case at bench. There can be no doubt that petitioners must have suffered sleepless nights, serious anxiety, and wounded feelings due the tortious raid caused by petitioners. Private respondents' avowals of embarrassment and humiliation during the seizure of their merchandise were supported by their testimonies. Respondent Cruz declared: I felt very nervous. I was crying to loss (sic) my goods and capital because I am doing business with borrowed money only, there was commotion created by the raiding team and they even stepped on some of the pants and dresses on display for sale. All passersby stopped to watch and stared at me with accusing expressions. I was trembling and terribly ashamed, sir. 18 Respondent Lugatiman testified:

Needles to state, the wantonness of the wrongful seizure justifies the award of exemplary damages. 21 It will also serve as a stern reminder to all and sundry that the constitutional protection against unreasonable search and seizure is a virile reality and not a mere burst of rhetoric. The all encompassing protection extends against intrusions directly done both by government and indirectly by private entities. IN VIEW WHEREOF, the appealed decision is AFFIRMED WITH MODIFICATION. We impose a SIX PERCENT (6%) interest from January 9, 1987 on the TWO THOUSAND PESOS (P2,000.00) for the unreturned twenty-six (26) pieces of girl scouts items and a TWELVE PERCENT (12%) interest, in lieu of SIX PERCENT (6%), on the said amount upon finality of this Decision until the payment thereof. 22 Costs against petitioners. SO ORDERED. Narvasa, Padilla, Regalado, and Mendoza, JJ., concur.

THIRD DIVISION G.R. No. 189220, December 07, 2016 ALBERT WILSON, Petitioner, v. THE HONORABLE EXECUTIVE SECRETARY EDUARDO ERMITA, SECRETARY OF FOREIGN AFFAIRS ALBERTO ROMULO, SECRETARY OF JUSTICE RAUL GONZALES, BUREAU OF JAIL MANAGEMENT AND PENOLOGY, BOARD OF CLAIMS, DEPARTMENT OF JUSTICE, SOLICITOR GENERAL AGNES DEVANADERA, AND BUREAU OF IMMIGRATION, Respondents. DECISION REYES, J.: Before the Court is a Petition for Mandamus1 filed by Albert Wilson (Wilson) to enforce the United Nations Human Rights Committee (the Committee) Communication No. 868/19992 (View) against the Republic of the Philippines (RP).chanroblesvirtuallawlibrary Antecedent Facts The present case has its roots in the incarceration and subsequent acquittal of Wilson for the crime of rape which was the subject of the Court's ruling in GR. No. 135915 entitled People of the Philippines v. Wilson.3 Proceedings

in

G.R.

No.

135915

On September 16, 1996, Wilson, a British national, was accused and charged with the crime of consummated rape4 by a 12-year-old girl, the daughter of his Filipina live-in partner. The girl was assisted by her biological father in filing the criminal complaint. Immediately thereafter, Wilson was taken into custody. After trial, Wilson was found guilty beyond reasonable doubt of the crime of Rape by the Regional Trial Court (RTC) of Valenzuela, Metro Manila, Branch 171, in its Decision dated September 30, 1998 and was imposed the death penalty pursuant to Section 11 of Republic Act (R.A.) No. 76595 and ordered to indemnify the victim the amount of P50,000.00.6 The case was elevated to the Supreme Court for automatic review. Pending appeal, or on June 15, 1999, Wilson filed with the Committee, pursuant to Article 5, paragraph 4 of the Optional Protocol, a case7against the RP for violations of the International Covenant on Civil and Political Rights (ICCPR) specifically: Article 2, paragraphs 2 and 3;8 Articles 6;9 7;10 9;11 10, paragraphs 1 and 2;12 and Article 14, paragraphs 1, 2, and 3 and 6.13 In the Decision14 dated December 21, 1999, the Court reversed the ruling of the RTC. It found that there were serious discrepancies and inconsistent statements particularly in the testimony given by the victim. It concluded that there was not enough evidence to support the finding of guilt beyond reasonable doubt for the crime of rape by Wilson. The Court, thus, acquitted Wilson stating: chanRoblesvirtualLawlibrary WHEREFORE, the decision of the trial court is reversed and set aside. The accused is hereby acquitted of the charge of consummated rape. The Director of the Bureau of Corrections is ordered to effect his immediate release from custody unless he is being held in custody for some other legal cause. SO ORDERED.15ChanRoblesVirtualawlibrary The Present

Case

Wilson was released from detention the day after the acquittal. He immediately left the Philippines for the United Kingdom (UK). Upon his return in the UK, Wilson sought compensation from the Board of Claims (BOC) of the Department of Justice (DOJ) pursuant to R.A. No. 730916 through counsel as one who was unjustly accused, convicted and imprisoned but released by virtue of an acquittal. On January 1, 2001, the BoC-DOJ awarded to Wilson P14,000.00 as compensation. On February 21, 2001, Wilson was informed of the BoC-DOJ award and that he had to claim the compensation in person in the Philippines. Wilson moved for reconsideration arguing that under R.A. No. 7309, he was entitled to P40,000.00.17

granting Wilson an additional award of P26,000.00 in addition to the initial amount of P14,000.00 bringing the total award to P40,000.00.21 In September 2001, the DOJ issued a check amounting to P26,000.00 representing the additional award. The check was made out to Wilson, care of the Ambassador of UK at the request of the former.22 On November 11, 2003, the Committee issued the View. It found that the allegations falling under Article 14, paragraphs 1, 2, 3 and 6 of the ICCPR were inadmissible.23 The Committee stated: chanRoblesvirtualLawlibrary 9. In accordance with article 2, paragraph 3 (a), of the [ICCPR], the State party is under an obligation to provide the author with an effective remedy. In respect of the violations of article 9 the State party should compensate the author. As to the violations of articles 7 and 10 suffered while in detention, including subsequent to sentence of death, the Committee observes that the compensation provided by the State party under its domestic law was not directed at these violations, and that compensation due to the author should take due account both of the seriousness of the violations and the damage to the author caused. In this context, the Committee recalls the duty upon the State party to undertake a comprehensive and impartial investigation of the issues raised in the course of the author's detention, and to draw the appropriate penal and disciplinary consequences for the individuals found responsible. As to the imposition of immigration fees and visa exclusion, the Committee takes the view that in order to remedy the violations of the Covenant the State party should refund to the author the moneys claimed from him. All monetary compensation thus due to the author by the State party should be made available for payment to the author at the venue of his choice, be it within the State party's territory or abroad. The State party is also under an obligation to avoid similar violations in the future.24ChanRoblesVirtualawlibrary In a letter25cralawred dated June 19, 2008, Wilson, through his counsel, asked the Executive Secretary [ES]: chanRoblesvirtualLawlibrary As with internationally wrongful acts, a breach of a State obligation gives rise first to a duty of reparation. The Committee found that the breach of Covenant obligations required that the Philippines provide compensation or redress. In accordance with the decision of the Committee, we thus pray that this Honorable Office: 1.

take steps to effect payment of compensation to Mr. Wilson, taking into consideration the seriousness of the breach of his human rights;chanrobleslaw

2.

direct the [BOC] to release the sums awarded to Mr. Wilson to his authorized representatives, the undersigned counsel Roque and Butuyan Law Office.

3.

direct the [BI] to refund the amount unjustly imposed upon Mr. Wilson for overstaying his tourist visa, such be indirectly attributable to the wrongful decision of the trial court.26

In his letter27 dated October 20, 2008, Wilson reiterated his June 19, 2008 letter and asked that the payment of compensation be effected, a comprehensive and impartial investigation be conducted, and the monies paid by Wilson with respect to immigration fees and visa exclusion be refunded.28 On October 29, 2008, the letter was referred by the ES to the DOJ Secretary for appropriate action.29 On September 9, 2009, Wilson filed the present petition for mandamus.30 He insists his entitlement to the writ of mandamus owing to the ICCPR and the Optional Protocol. He argues that by virtue of the doctrine of transformation, the RP is in breach of an international obligation since any View issued by the Committee constitutes part of international law and that the RP is obligated to enforce the same. He prays that: chanRoblesvirtualLawlibrary 1.

Respondents take steps to ensure that Albert Wilson is paid and given reparation in the amount sufficient to compensate him for the torture and abuse he suffered under the penal system of the Philippines, in compliance with Philippine treaty obligations in the ICCPR as embodied in the Communication of the Human Rights Committee in Case no. 868/1999 in keeping with international law on reparations.

2.

Respondents undertake continual efforts and steps to ensure that no torture and inhuman and degrading treatment are suffered by prisoners in the National Penitentiary and other places of detention and imprisonment in the Philippines, in the manner laid down in the Manila Bay case.31

On April 23, 2001, the BoC-DOJ informed Wilson that a memorandum was issued directing the BOC to raise the award to the maximum amount that may be paid to those unjustly imprisoned or detained subject to the availability of funds.18 Wilson applied for and was denied a tourist visa to travel to the Philippines due to his presence in the Bureau of Immigration (BI) watch list.19 According to the BI, Wilson's presence in the watch list could be attributed to his overstaying and his previous conviction of a crime involving moral turpitude.20 The BoC-DOJ, thereafter, issued Resolution No. 2001-25 dated August 24, 2001

The RP, through the Office of the Solicitor General (OSG), opines that the petition is without merit. It argues that Wilson was not able to prove that there is any national law giving life to the ICCPR and Optional Protocol in order for it to have force and effect in our jurisdiction as required under Article 2(2) of the ICCPR.32 It further avers that the findings of the Committee are merely recommendatory and does not give rise to an obligation to enforce and implement the View. Thus, being recommendatory, the View cannot be used to compel the Philippine Government to compensate Wilson.33 In any event, Wilson's documents show that BoC-DOJ had already awarded in his favor P40,000.00 pursuant to R.A. No. 7309 and it was of Wilson's own volition that the amount remains unclaimed.34 It disagrees that the case of Metropolitan Manila Development Authority, et al. v. Concerned Residents of Manila Bay, et al.35 is applicable because unlike the Manila Bay case, the petitioner, in this case, seeks to enforce international law and not domestic law.36chanroblesvirtuallawlibrary

the number of months of imprisonment. Compensation for each month of imprisonment shall not exceed P1,000.00.43 It is clear, however, that Wilson has been granted compensation under R.A. No. 7309. In fact, the BoC-DOJ granted to Wilson the maximum allowed compensation under that law. It was Wilson's decision not to collect the money granted to him. Other than the R.A. No. 7309, under which Wilson had already been granted compensation, there is no other law or regulation that forms the basis of such ministerial right that the government is impelled to grant. Wilson does not present any law by which his ministerial right arises from with respect to additional compensation. It is not within this Court's discretion to adjust any monetary grant arbitrarily. There

Issue Simply, the issue before this Court ts whether mandamus lies to compel the enforcement of the View.chanroblesvirtuallawlibrary Ruling of the Court The

petition

is

without

merit.

Under Section 3, Rule 65 of the Rules of Court, mandamus is a writ issued to compel a tribunal to perform an act which the law enjoins as a duty resulting from an office, trust or station, to wit: chanRoblesvirtualLawlibrary Section 3. Petition for mandamus. - When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46. (Emphasis ours)ChanRoblesVirtualawlibrary In Yuvienco v. Hon. Canonoy, etc., et al.,37 and several times reiterated thereafter, the Court held that a purely ministerial duty must exist and a clear legal right must be established by the petitioner for mandamus to lie, to wit: chanRoblesvirtualLawlibrary Two pertinent principles arc well settled in this jurisdiction: (a) one is that mandamus would lie only to compel a tribunal, board or officer to comply with a purely ministerial duty, or to allow a party to exercise a right or to occupy and enjoy the privileges of an office to which he is lawfully entitled; (b) the others is that for the writ of mandamus to issue, petitioner must establish a clear legal right to the relief sought, and a mandatory duty on the part of the respondent in relation thereto.38ChanRoblesVirtualawlibrary It behooves the Court to examine whether the View dated November 11, 2003 relied upon by Wilson confers upon him any legal right which the respondents are ministerially required to perform but have unlawfully neglected. No

Ministerial

Duty

It is well-settled that a ministerial duty must be clear and specific as to leave no room for the exercise of discretion in its performance.39 As stated in Lord Allan Jay Q. Velasco v. Hon. Speaker Feliciano R. Belmonte, Jr., Secretary General Marilyn B. BaruaYap and Regina Ongsiako Reyes:40 A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.41ChanRoblesVirtualawlibrary R.A. No. 7309 was passed on March 30, 1992 creating a BoC-DOJ to evaluate and investigate claims for compensation for persons who were: (1) unjustly accused, convicted and imprisoned but released by virtue of an acquittal; (2) unjustly detained and released without being charged; (3) a victim of arbitrary or illegal detention and released without being charged; and (4) victim of a violent crime.42 Under R.A. No. 7309, compensation for victims of unjust imprisonment or detention will be based on

is

No

Clear

and

Complete

Legal

Right

On December 19, 1966, the RP became party to the ICCPR and the Optional Protocol.44 The ICCPR recognized the "inherent dignity of the human person" and its concomitant rights. At the same time, the Philippines made a declaration that: chanRoblesvirtualLawlibrary The Philippine Government, in accordance with article 41 of the said Covenant, recognizes the competence of the Human Rights Committee set up in the aforesaid Covenant, to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant.45ChanRoblesVirtualawlibrary Pursuant to Article 41 of the ICCPR, the Committee was organized. Signatories recognized the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the ICCPR.46 In addition, under Article 1 of the Optional Protocol, the State parties agreed to recognize the competence of the Committee to receive and consider communications from individuals who claim to be victims of a violation by that State Party of any rights set forth in the ICCPR. The Philippine Congress ratified the ICCPR on October 23, 1986 and the Optional Protocol on August 22, 1989. As the OSG points out, the Court in the case of Pharmaceutical and Health Care Association of the Philippines v. Health Sec. Duque III47 stated that a treaty is transformed into domestic law through a constitutional mechanism. The Court explained: chanRoblesvirtualLawlibrary Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of. all the members of the Senate." Thus, treaties or conventional international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts.48 (Citations omitted and emphasis ours)ChanRoblesVirtualawlibrary In sum, there must be an act more than ratification to make a treaty applicable in our jurisdiction. To be sure, what was ratified were the ICCPR and the Optional Protocol, nowhere in the instrument does it say that the View of the Committee forms part of the treaty. Even the Committee in its General Comment No. 33 stated that: chanRoblesvirtualLawlibrary 11. While the function of the Human Rights Committee in considering individual communications is not, as such, that of a judicial body, the views issued by the Committee under the Optional Protocol exhibit some important characteristics of a judicial decision. xxx.49ChanRoblesVirtualawlibrary Any View issued by the Committee only displays "important characteristics of a judicial decision" and are not per se decisions which may be enforced outright. These Views, therefore, are mere recommendations to guide the State it is issued against. Once again, the Court would like to stress that it is beyond its purview to act on such recommendations as these are matters which are best taken up by the Legislative and the Executive branches of government as can be seen by the formation of the Presidential Human Rights Committee.50 To recall, the Court derives its powers under its basic mandate under Section 1, Article VIII of the 1987 Constitution: chanRoblesvirtualLawlibrary Section 1. The judicial power shall be vested in one Supreme Court and in such l9wer courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess

of jurisdiction on the part of any branch or instrumentality of the Government.ChanRoblesVirtualawlibrary The Court finds that there is no ministerial duty and clear legal right which would justify the issuance of a writ of mandamus. WHEREFORE,

the

petition

is

denied

for

SO Velasco, Jr., (Chairperson), concur.chanRoblesvirtualLawlibrary

lack

of

merit.

ORDERED.cralawlawlibrary Peralta,

Perez,

and Jardeleza,

JJ.,

EN BANC G.R. No. 161434 March 3, 2004 MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs. The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.) and VICTORINO X. FORNIER, respondents. x-----------------------------x G.R. No. 161634 March 3, 2004 ZOILO ANTONIO VELEZ, petitioner, vs. RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent. x-----------------------------x G. R. No. 161824 March 3, 2004 VICTORINO X. FORNIER, petitioner, vs. HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN AS FERNANDO POE JR., respondents. DECISION VITUG, J.: Citizenship is a treasured right conferred on those whom the state believes are deserving of the privilege. It is a "precious heritage, as well as an inestimable acquisition,"1 that cannot be taken lightly by anyone - either by those who enjoy it or by those who dispute it. Before the Court are three consolidated cases, all of which raise a single question of profound importance to the nation. The issue of citizenship is brought up to challenge the qualifications of a presidential candidate to hold the highest office of the land. Our people are waiting for the judgment of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the main contenders for the presidency, a natural-born Filipino or is he not? The moment of introspection takes us face to face with Spanish and American colonial roots and reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a hybrid of laws and jurisprudence that could be no less than distinctly Filipino. Antecedent Case Settings On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila. Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before the Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of an alien mother. Petitioner based the allegation of the illegitimate birth of respondent on two assertions - first, Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of respondent. In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support of his claim, presented several documentary exhibits - 1) a copy of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe, after discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit

aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a certification issued by the Director of the Records Management and Archives Office, attesting to the fact that there was no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the Philippines before 1907, and 6) a certification from the Officer-In-Charge of the Archives Division of the National Archives to the effect that no available information could be found in the files of the National Archives regarding the birth of Allan F. Poe. On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant ones being - a) a certification issued by Estrella M. Domingo of the Archives Division of the National Archives that there appeared to be no available information regarding the birth of Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the Archives Division of the National Archives that no available information about the marriage of Allan F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage contract between Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said office during the period of from 1900 until May 1946 were totally destroyed during World War II. On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later, or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 06 February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the decision of the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a temporary restraining order, a writ of preliminary injunction or any other resolution that would stay the finality and/or execution of the COMELEC resolutions. The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections, Ronald Allan Kelley Poe (a.k.a. ‘Fernando Poe, Jr.’), and Victorino X. Fornier," and the other, docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that, under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue on the case. Jurisdiction of the Court In G. R. No. 161824 In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course to or cancel FPJ’s certificate of candidacy for alleged misrepresentation of a material fact (i.e., that FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked Section 78 of the Omnibus Election Code – "Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false" – in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus Election Code "Section 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections" and in relation to Article 69 of the Omnibus Election Code which would authorize "any interested party" to file a verified petition to deny or cancel the certificate of candidacy of any nuisance candidate.

Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per Rule 642 in an action for certiorari under Rule 653 of the Revised Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution also reads – "Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum, required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in one Supreme Court and in such lower courts as may be established by law which power "includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and could well be taken cognizance of by, this Court. A contrary view could be a gross denial to our people of their fundamental right to be fully informed, and to make a proper choice, on who could or should be elected to occupy the highest government post in the land.

"Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President of the Philippines who received the second or third highest number of votes may contest the election of the President or the Vice-President, as the case may be, by filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the proclamation of the winner." The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of "candidates" for President or Vice-President. A quo warranto proceeding is generally defined as being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office.5 In such context, the election contest can only contemplate a post-election scenario. In Rule 14, only a registered candidate who would have received either the second or third highest number of votes could file an election protest. This rule again presupposes a postelection scenario. It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the 1987 Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vice-presidency before the elections are held. Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction. The Citizenship Issue

In G. R. No. 161434 and G. R. No. 161634 Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead take on the petitions they directly instituted before it. The Constitutional provision cited reads: "The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or VicePresident, and may promulgate its rules for the purpose." The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas,4 as "not (being) justiciable" controversies or disputes involving contests on the elections, returns and qualifications of the President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of the tribunal. Although the subsequent adoption of the parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution. Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election contests consist of either an election protest or a quo warranto which, although two distinct remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this premise "Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or VicePresident of the Philippines. "Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or a petition for quo warranto against the President or Vice-President. An election protest shall not include a petition for quo warranto. A petition for quo warranto shall not include an election protest.

Now, to the basic issue; it should be helpful to first give a brief historical background on the concept of citizenship. Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384 to 322 B.C., described the "citizen" to refer to a man who shared in the administration of justice and in the holding of an office.6Aristotle saw its significance if only to determine the constituency of the "State," which he described as being composed of such persons who would be adequate in number to achieve a selfsufficient existence.7 The concept grew to include one who would both govern and be governed, for which qualifications like autonomy, judgment and loyalty could be expected. Citizenship was seen to deal with rights and entitlements, on the one hand, and with concomitant obligations, on the other.8 In its ideal setting, a citizen was active in public life and fundamentally willing to submit his private interests to the general interest of society. The concept of citizenship had undergone changes over the centuries. In the 18th century, the concept was limited, by and large, to civil citizenship, which established the rights necessary for individual freedom, such as rights to property, personal liberty and justice.9 Its meaning expanded during the 19th century to include political citizenship, which encompassed the right to participate in the exercise of political power.10 The 20th century saw the next stage of the development of social citizenship, which laid emphasis on the right of the citizen to economic well-being and social security.11 The idea of citizenship has gained expression in the modern welfare state as it so developed in Western Europe. An ongoing and final stage of development, in keeping with the rapidly shrinking global village, might well be the internationalization of citizenship.12 The Local Setting - from Spanish Times to the Present There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or "Spanish subjects."13 In church records, the natives were called 'indios', denoting a low regard for the inhabitants of the archipelago. Spanish laws on citizenship became highly codified during the 19th century but their sheer number made it difficult to point to one comprehensive law. Not all of these citizenship laws of Spain however, were made to apply to the Philippine Islands except for those explicitly extended by Royal Decrees.14 Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain on 16 July 1805 but as to whether the law was extended to the Philippines remained to be the subject of differing views among experts;15 however, three royal decrees were undisputably made applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August 1841,16 the Royal Decree of 23 August 1868 specifically defining the political status of children born in the Philippine Islands,17 and

finally, the Ley Extranjera de Ultramar of 04 July 1870, which was expressly made applicable to the Philippines by the Royal Decree of 13 July 1870.18 The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the express mandate of its Article 89, according to which the provisions of the Ultramar among which this country was included, would be governed by special laws.19 It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which came out with the first categorical enumeration of who were Spanish citizens. "(a) Persons born in Spanish territory, "(b) Children of a Spanish father or mother, even if they were born outside of Spain, "(c) Foreigners who have obtained naturalization papers, "(d) Those who, without such papers, may have become domiciled inhabitants of any town of the Monarchy."20 The year 1898 was another turning point in Philippine history. Already in the state of decline as a superpower, Spain was forced to so cede her sole colony in the East to an upcoming world power, the United States. An accepted principle of international law dictated that a change in sovereignty, while resulting in an abrogation of all political laws then in force, would have no effect on civil laws, which would remain virtually intact. The Treaty of Paris was entered into on 10 December 1898 between Spain and the United States.21 Under Article IX of the treaty, the civil rights and political status of the native inhabitants of the territories ceded to the United States would be determined by its Congress "Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they reside. Thus –

have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris, December tenth eighteen hundred and ninety eight."23 Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the Philippines, and a Spanish subject on the 11th day of April 1899. The term "inhabitant" was taken to include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11 April 1899.24 Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July 1902, during which period no citizenship law was extant in the Philippines. Weight was given to the view, articulated in jurisprudential writing at the time, that the common law principle of jus soli, otherwise also known as the principle of territoriality, operative in the United States and England, governed those born in the Philippine Archipelago within that period.25 More about this later. In 23 March 1912, the Congress of the United States made the following amendment to the Philippine Bill of 1902 "Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possession of the United States, and such other persons residing in the Philippine Islands who would become citizens of the United States, under the laws of the United States, if residing therein."26 With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 "That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequently thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such others as have since become citizens of some other country; Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States, if residing therein."

"The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress."22

Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that date, not a citizen of some other country.

Upon the ratification of the treaty, and pending legislation by the United States Congress on the subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did not become American citizens, they, however, also ceased to be "aliens" under American laws and were thus issued passports describing them to be citizens of the Philippines entitled to the protection of the United States.

While there was, at one brief time, divergent views on whether or not jus soli was a mode of acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by adopting, once and for all, jus sanguinis or blood relationship as being the basis of Filipino citizenship -

The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation of the Congress of the United States on the Philippines ".... that all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall

"Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines "(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution "(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands.

"(3) Those whose fathers are citizens of the Philippines. "(4) Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship. "(5) Those who are naturalized in accordance with law." Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at the time, which provided that women would automatically lose their Filipino citizenship and acquire that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the women from transmitting their Filipino citizenship to their legitimate children and required illegitimate children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority. Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new Constitution on citizenship to reflect such concerns "Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines: "(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution. "(2) Those whose fathers or mothers are citizens of the Philippines. "(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five. "(4) Those who are naturalized in accordance with law." For good measure, Section 2 of the same article also further provided that – "A female citizen of the Philippines who marries an alien retains her Philippine citizenship, unless by her act or omission she is deemed, under the law to have renounced her citizenship." The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for subsection (3) thereof that aimed to correct the irregular situation generated by the questionable proviso in the 1935 Constitution. Section I, Article IV, 1987 Constitution now provides: "The following are citizens of the Philippines: "(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution. "(2) Those whose fathers or mothers are citizens of the Philippines. "(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and "(4) Those who are naturalized in accordance with law." The Case Of FPJ Section 2, Article VII, of the 1987 Constitution expresses: "No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election."

The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship."27 The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus soli, res judicata and jus sanguinis28 – had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of Customs29 (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor30 (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth. Documentary evidence adduced by petitioner would tend to indicate that the earliest established direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in evidence, his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan, and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Español father, Lorenzo Pou, and a mestiza Español mother, Marta Reyes. Introduced by petitioner was an "uncertified" copy of a supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be on 16 September 1940. In the same certificate, Allan F. Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twenty-one years old and married. Considering the reservations made by the parties on the veracity of some of the entries on the birth certificate of respondent and the marriage certificate of his parents, the only conclusions that could be drawn with some degree of certainty from the documents would be that 1. The parents of FPJ were Allan F. Poe and Bessie Kelley; 2. FPJ was born to them on 20 August 1939; 3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940; 4. The father of Allan F. Poe was Lorenzo Poe; and 5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old. Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a public officer. The documents have been submitted in evidence by both contending parties during the proceedings before the COMELEC. The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent. The death certificate of Lorenzo Pou was submitted by respondent as his Exhibit "5." While the last two documents were submitted in evidence for respondent, the admissibility thereof, particularly in reference to the facts which they purported to show, i.e., the marriage certificate in relation to the date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who had utilized those material statements in his argument. All three documents were certified true copies of the originals. Section 3, Rule 130, Rules of Court states that "Original document must be produced; exceptions. - When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:

"x x x

xxx

xxx

"(d) When the original is a public record in the custody of a public office or is recorded in a public office." Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents. Section 44, Rule 130, of the Rules of Court provides: "Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated." The trustworthiness of public documents and the value given to the entries made therein could be grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such statements, and 4) the publicity of record which makes more likely the prior exposure of such errors as might have occurred.31 The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would argue that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902 considering that there was no existing record about such fact in the Records Management and Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude, or at least to presume, that the place of residence of a person at the time of his death was also his residence before death. It would be extremely doubtful if the Records Management and Archives Office would have had complete records of all residents of the Philippines from 1898 to 1902. Proof of Paternity and Filiation Under Civil Law. Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to the father [or mother]) or paternity (relationship or civil status of the father to the child) of an illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules under civil law must be used. Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a public document.32 Complementary to the new code was Act No. 3753 or the Civil Registry Law expressing in Section 5 thereof, that "In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only by the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein any information by which such father could be identified." In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation or paternity, the certificate was required to be signed or sworn to by the father. The failure of such requirement rendered the same useless as being an authoritative document of recognition.33 In Mendoza vs. Mella,34 the Court ruled "Since Rodolfo was born in 1935, after the registry law was enacted, the question here really is whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the registry record, may be relied upon as sufficient proof of his having been voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While it contains the names of both parents, there is no showing that they signed the original, let alone

swore to its contents as required in Section 5 of Act No. 3753. For all that might have happened, it was not even they or either of them who furnished the data to be entered in the civil register. Petitioners say that in any event the birth certificate is in the nature of a public document wherein voluntary recognition of a natural child may also be made, according to the same Article 131. True enough, but in such a case, there must be a clear statement in the document that the parent recognizes the child as his or her own." In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was the signature of Allan F. Poe found. There being no will apparently executed, or at least shown to have been executed, by decedent Allan F. Poe, the only other proof of voluntary recognition remained to be "some other public document." In Pareja vs. Pareja,35 this Court defined what could constitute such a document as proof of voluntary acknowledgment: "Under the Spanish Civil Code there are two classes of public documents, those executed by private individuals which must be authenticated by notaries, and those issued by competent public officials by reason of their office. The public document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class." Let us leave it at that for the moment. The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a record of birth, a will, a statement before a court of record or in any authentic writing. Legal acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was recognized or judicially declared as natural. Compulsory acknowledgment could be demanded generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to claim legitimacy which would last during the lifetime of the child, and might pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could only be brought during the lifetime of the presumed parent. Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be an authentic writing for purposes of voluntary recognition, simply as being a genuine or indubitable writing of the father. The term would include a public instrument (one duly acknowledged before a notary public or other competent official) or a private writing admitted by the father to be his. The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide: "Art. 172. The filiation of legitimate children is established by any of the following: "(1) The record of birth appearing in the civil register or a final judgment; or "(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. "In the absence of the foregoing evidence, the legitimate filiation shall be proved by: "(1) The open and continuous possession of the status of a legitimate child; or "(2) Any other means allowed by the Rules of Court and special laws. "Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. "The action already commenced by the child shall survive notwithstanding the death of either or both of the parties.

"x x x

xxx

x x x.

"Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same, evidence as legitimate children. "The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent." The provisions of the Family Code are retroactively applied; Article 256 of the code reads: "Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws." Thus, in Vda. de Sy-Quia vs. Court of Appeals,36 the Court has ruled: "We hold that whether Jose was a voluntarily recognized natural child should be decided under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that 'the voluntary recognition of a natural child shall take place according to this Code, even if the child was born before the effectivity of this body of laws' or before August 30, 1950. Hence, Article 278 may be given retroactive effect."

legal fiction extended only to define his rights under civil law41 and not his political status. Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be traced to the Spanish family and property laws, which, while defining proprietary and successional rights of members of the family, provided distinctions in the rights of legitimate and illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by foreign blood was paramount. These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and the invidious discrimination survived when the Spanish Civil Code became the primary source of our own Civil Code. Such distinction, however, remains and should remain only in the sphere of civil law and not unduly impede or impinge on the domain of political law. The proof of filiation or paternity for purposes of determining his citizenship status should thus be deemed independent from and not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not have preclusive effects on matters alien to personal and family relations. The ordinary rules on evidence could well and should govern. For instance, the matter about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code provisions. Section 39, Rule 130, of the Rules of Court provides -

It should be apparent that the growing trend to liberalize the acknowledgment or recognition of illegitimate children is an attempt to break away from the traditional idea of keeping well apart legitimate and non-legitimate relationships within the family in favor of the greater interest and welfare of the child. The provisions are intended to merely govern the private and personal affairs of the family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the individual would also affect his political rights or, in general, his relationship to the State. While, indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must be taken in the context of private relations, the domain of civil law; particularly -

"Act or Declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word `pedigree’ includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree."

"Civil Law is that branch of law which has for its double purpose the organization of the family and the regulation of property. It has thus [been] defined as the mass of precepts which determine and regulate the relations of assistance, authority and obedience among members of a family, and those which exist among members of a society for the protection of private interests."37

For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the person whose pedigree is in question, (d) declaration must be made before the controversy has occurred, and (e) the relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration.

In Yañez de Barnuevo vs. Fuster,38 the Court has held: "In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family rights and duties, or to the status, condition and legal capacity of persons, govern Spaniards although they reside in a foreign country; that, in consequence, 'all questions of a civil nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile of the husband and wife, their support, as between them, the separation of their properties, the rules governing property, marital authority, division of conjugal property, the classification of their property, legal causes for divorce, the extent of the latter, the authority to decree it, and, in general, the civil effects of marriage and divorce upon the persons and properties of the spouses, are questions that are governed exclusively by the national law of the husband and wife."

Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe, recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley and his children (including respondent FPJ) in one house, and as one family "I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton, California, U.S.A., after being sworn in accordance with law do hereby declare that: "1. I am the sister of the late Bessie Kelley Poe. "2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.

The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil Code, stating that -

"3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly known in the Philippines as `Fernando Poe, Jr.,’ or `FPJ’.

"Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad" -

"4. Ronald Allan Poe `FPJ’ was born on August 20, 1939 at St. Luke's Hospital, Magdalena Street, Manila. "x x x

that explains the need to incorporate in the code a reiteration of the Constitutional provisions on citizenship. Similarly, citizenship is significant in civil relationships found in different parts of the Civil Code,39 such as on successional rights and family relations.40 In adoption, for instance, an adopted child would be considered the child of his adoptive parents and accorded the same rights as their legitimate child but such

xxx

xxx

"7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were students at the University of the Philippines in 1936. I was also introduced to Fernando Poe, Sr., by my sister that same year.

"8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938. "9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan and Fernando II, and myself lived together with our mother at our family's house on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945, except for some months between 1943-1944. "10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after Ronald Allan Poe. "x x x

xxx

"First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and a Chinese father. The issue was whether the stepson followed the naturalization of the stepfather. Nothing about jus sanguinis there. The stepson did not have the blood of the naturalized stepfather. "Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino father. It was about a legitimate son of a father who had become Filipino by election to public office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935 Constitution. No one was illegitimate here.

xxx

"18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr.

"Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father. Serra was an illegitimate child of a Chinese father and a Filipino mother. The issue was whether one who was already a Filipino because of his mother who still needed to be naturalized. There is nothing there about invidious jus sanguinis.

"Done in City of Stockton, California, U.S.A., this 12th day of January 2004. Ruby Kelley Mangahas Declarant DNA Testing In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals,42 this Court has acknowledged the strong weight of DNA testing "Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and the child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress." Petitioner’s Argument For Jurisprudential Conclusiveness Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted marriage with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley bigamous and respondent FPJ an illegitimate child. The veracity of the supposed certificate of marriage between Allan F. Poe and Paulita Gomez could be most doubtful at best. But the documentary evidence introduced by no less than respondent himself, consisting of a birth certificate of respondent and a marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a Filipino father and an American mother who were married to each other a year later, or on 16 September 1940. Birth to unmarried parents would make FPJ an illegitimate child. Petitioner contended that as an illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelley, an American citizen, basing his stand on the ruling of this Court in Morano vs. Vivo,43 citing Chiongbian vs. de Leo44 and Serra vs. Republic.45 On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most convincing; he states "We must analyze these cases and ask what the lis mota was in each of them. If the pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement would be a decision constituting doctrine under the rule of stare decisis. But if the pronouncement was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter dictum which did not establish doctrine. I therefore invite the Court to look closely into these cases.

"Finally, Paa vs. Chan.46 This is a more complicated case. The case was about the citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother. Quintin therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court said that there was no valid proof that Leoncio was in fact the son of a Filipina mother. The Court therefore concluded that Leoncio was not Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not even a Filipino. "The Court should have stopped there. But instead it followed with an obiter dictum. The Court said obiter that even if Leoncio, Quintin's father, were Filipino, Quintin would not be Filipino because Quintin was illegitimate. This statement about Quintin, based on a contrary to fact assumption, was absolutely unnecessary for the case. x x x It was obiter dictum, pure and simple, simply repeating the obiter dictum in Morano vs. Vivo. "x x x

xxx

xxx

"Aside from the fact that such a pronouncement would have no textual foundation in the Constitution, it would also violate the equal protection clause of the Constitution not once but twice. First, it would make an illegitimate distinction between a legitimate child and an illegitimate child, and second, it would make an illegitimate distinction between the illegitimate child of a Filipino father and the illegitimate child of a Filipino mother. "The doctrine on constitutionally allowable distinctions was established long ago by People vs. Cayat.47 I would grant that the distinction between legitimate children and illegitimate children rests on real differences. x x x But real differences alone do not justify invidious distinction. Real differences may justify distinction for one purpose but not for another purpose. "x x x What is the relevance of legitimacy or illegitimacy to elective public service? What possible state interest can there be for disqualifying an illegitimate child from becoming a public officer. It was not the fault of the child that his parents had illicit liaison. Why deprive the child of the fullness of political rights for no fault of his own? To disqualify an illegitimate child from holding an important public office is to punish him for the indiscretion of his parents. There is neither justice nor rationality in that. And if there is neither justice nor rationality in the distinction, then the distinction transgresses the equal protection clause and must be reprobated." The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis of petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail. Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did so for the benefit the child. It was to ensure a Filipino nationality for the

illegitimate child of an alien father in line with the assumption that the mother had custody, would exercise parental authority and had the duty to support her illegitimate child. It was to help the child, not to prejudice or discriminate against him. The fact of the matter – perhaps the most significant consideration – is that the 1935 Constitution, the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never be more explicit than it is. Providing neither conditions nor distinctions, the Constitution states that among the citizens of the Philippines are "those whose fathers are citizens of the Philippines." There utterly is no cogent justification to prescribe conditions or distinctions where there clearly are none provided. In Sum – (1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for alleged grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003 which has prayed for the disqualification of respondent FPJ from running for the position of President in the 10th May 2004 national elections on the contention that FPJ has committed material representation in his certificate of candidacy by representing himself to be a natural-born citizen of the Philippines. (2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No. 161434 and No. 161634 both having been directly elevated to this Court in the latter’s capacity as the only tribunal to resolve a presidential and vice-presidential election contest under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked only after, not before, the elections are held. (3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the COMELEC, it is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou would have benefited from the "en masse Filipinization" that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate. (4) But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties to present their position and evidence, and to prove whether or not there has been material misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC,48 must not only be material, but also deliberate and willful. WHEREFORE, the Court RESOLVES to DISMISS – 1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr., Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of jurisdiction.

2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.," for failure to show grave abuse of discretion on the part of respondent Commission on Elections in dismissing the petition in SPA No. 04-003. No Costs. SO ORDERED. Davide, Jr., C.J., see separate opinion, concurring. Puno, J., on leave but was allowed to vote; see separate opinion. Panganiban, J., on official leave; allowed to vote but did not send his vote on the matter. Quisumbing, J., joins the dissent of Justices Tinga and Morales; case should have been remanded. Ynares-Santiago, J., concurs and also with J. Puno’s separate opinion. Sandoval-Gutierrez, J., concurs, please see separate opinion. Carpio, J., see dissenting opinion. Austria-Martinez, J., concurs, please see separate opinion. Corona, J., joins the dissenting opinion of Justice Morales. Carpio-Morales, J., see dissenting opinion. Callejo, Sr., J., please see concurring opinion. Azcuna, J., concurs in a separate opinion. Tinga, J., dissents per separate opinion.

FIRST DIVISION G.R. No. 153883 January 13, 2004 REPUBLIC OF THE PHILIPPINES, petitioner, vs. CHULE Y. LIM, respondent.

The Republic, through the City Prosecutor of Iligan City, did not present any evidence although it actively participated in the proceedings by attending hearings and crossexamining respondent and her witnesses. On February 22, 2000, the trial court granted respondent’s petition and rendered judgment as follows:

DECISION YNARES-SANTIAGO, J.: This petition for review on certiorari under Rule 45 of the Rules of Court stemmed from a petition for correction of entries under Rule 108 of the Rules of Court filed by respondent Chule Y. Lim with the Regional Trial Court of Lanao del Norte, Branch 4, docketed as Sp. Proc. No. 4933.

WHEREFORE, the foregoing premises considered, to set the records of the petitioner straight and in their proper perspective, the petition is granted and the Civil Registrar of Iligan City is directed to make the following corrections in the birth records of the petitioner, to wit: 1. Her family name from "YO" to "YU"; 2. Her father’s name from "YO DIU TO (CO TIAN)" to "YU DIOTO (CO TIAN)";

In her petition, respondent claimed that she was born on October 29, 1954 in Buru-an, Iligan City. Her birth was registered in Kauswagan, Lanao del Norte but the Municipal Civil Registrar of Kauswagan transferred her record of birth to Iligan City. She alleged that both her Kauswagan and Iligan City records of birth have four erroneous entries, and prays that they be corrected.

3. Her status from "legitimate" to "illegitimate" by changing "YES" to "NO" in answer to the question "LEGITIMATE?"; and, 4. Her citizenship from "Chinese" to "Filipino".

The trial court then issued an Order,1 which reads: WHEREFORE, finding the petition to be sufficient in form and substance, let the hearing of this case be set on December 27, 1999 before this Court, Hall of Justice, Rosario Heights, Tubod, Iligan City at 8:30 o’clock in the afternoon at which date, place and time any interested person may appear and show cause why the petition should not be granted.

SO ORDERED.4 The Republic of the Philippines appealed the decision to the Court of Appeals which affirmed the trial court’s decision.5 Hence, this petition on the following assigned errors:

Let this order be published in a newspaper of general circulation in the City of Iligan and the Province of Lanao del Norte once a week for three (3) consecutive weeks at the expense of the petitioner. Furnish copies of this order the Office of the Solicitor General at 134 Amorsolo St., Legaspi Vill., Makati City and the Office of the Local Civil Registrar of Iligan City at Quezon Ave., Pala-o, Iligan City.

I THE COURT OF APPEALS ERRED IN ORDERING THE CORRECTION OF THE CITIZENSHIP OF RESPONDENT CHULE Y. LIM FROM "CHINESE" TO "FILIPINO" DESPITE THE FACT THAT RESPONDENT NEVER DEMONSTRATED ANY COMPLIANCE WITH THE LEGAL REQUIREMENTS FOR ELECTION OF CITIZENSHIP.

SO ORDERED. II During the hearing, respondent testified thus: First, she claims that her surname "Yu" was misspelled as "Yo". She has been using "Yu" in all her school records and in her marriage certificate.2 She presented a clearance from the National Bureau of Investigation (NBI)3 to further show the consistency in her use of the surname "Yu". Second, she claims that her father’s name in her birth record was written as "Yo Diu To (Co Tian)" when it should have been "Yu Dio To (Co Tian)." Third, her nationality was entered as Chinese when it should have been Filipino considering that her father and mother never got married. Only her deceased father was Chinese, while her mother is Filipina. She claims that her being a registered voter attests to the fact that she is a Filipino citizen. Finally, it was erroneously indicated in her birth certificate that she was a legitimate child when she should have been described as illegitimate considering that her parents were never married. Placida Anto, respondent’s mother, testified that she is a Filipino citizen as her parents were both Filipinos from Camiguin. She added that she and her daughter’s father were never married because the latter had a prior subsisting marriage contracted in China. In this connection, respondent presented a certification attested by officials of the local civil registries of Iligan City and Kauswagan, Lanao del Norte that there is no record of marriage between Placida Anto and Yu Dio To from 1948 to the present.

THE COURT OF APPEALS ERRED IN ALLOWING RESPONDENT TO CONTINUE USING HER FATHER’S SURNAME DESPITE ITS FINDING THAT RESPONDENT IS AN ILLEGITIMATE CHILD.6 To digress, it is just as well that the Republic did not cite as error respondent’s recourse to Rule 108 of the Rules of Court to effect what indisputably are substantial corrections and changes in entries in the civil register. To clarify, Rule 108 of the Revised Rules of Court provides the procedure for cancellation or correction of entries in the civil registry. The proceedings under said rule may either be summary or adversary in nature. If the correction sought to be made in the civil register is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary. This is our ruling in Republic v. Valencia7 where we held that even substantial errors in a civil registry may be corrected and the true facts established under Rule 108 provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. An appropriate adversary suit or proceeding is one where the trial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party’s case, and where the evidence has been thoroughly weighed and considered.8 As likewise observed by the Court of Appeals, we take it that the Republic’s failure to cite this error amounts to a recognition that this case properly falls under Rule 108 of the Revised Rules of Court considering that the proceeding can be appropriately classified as adversarial. Instead, in its first assignment of error, the Republic avers that respondent did not comply with the constitutional requirement of electing Filipino citizenship when she reached the age of majority. It cites Article IV, Section 1(3) of the 1935 Constitution, which provides that the citizenship of a legitimate child born of a Filipino mother and

an alien father followed the citizenship of the father, unless, upon reaching the age of majority, the child elected Philippine citizenship.9 Likewise, the Republic invokes the provision in Section 1 of Commonwealth Act No. 625, that legitimate children born of Filipino mothers may elect Philippine citizenship by expressing such intention "in a statement to be signed and sworn to by the party concerned before any officer authorized to administer oaths, and shall be filed with the nearest civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the Constitution and the Government of the Philippines."10 Plainly, the above constitutional and statutory requirements of electing Filipino citizenship apply only to legitimatechildren. These do not apply in the case of respondent who was concededly an illegitimate child, considering that her Chinese father and Filipino mother were never married. As such, she was not required to comply with said constitutional and statutory requirements to become a Filipino citizen. By being an illegitimate child of a Filipino mother, respondent automatically became a Filipino upon birth. Stated differently, she is a Filipino since birth without having to elect Filipino citizenship when she reached the age of majority. In Ching, Re: Application for Admission to the Bar,11 citing In re Florencio Mallare,12 we held: Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a Filipino, and no other act would be necessary to confer on him all the rights and privileges attached to Philippine citizenship (U.S. vs. Ong Tianse, 29 Phil. 332; Santos Co vs. Government of the Philippine Islands, 42 Phil. 543; Serra vs. Republic, L-4223, May 12, 1952; Sy Quimsuan vs. Republic, L-4693, Feb. 16, 1953; Pitallano vs. Republic, L-5111, June 28, 1954). Neither could any act be taken on the erroneous belief that he is a non-Filipino divest him of the citizenship privileges to which he is rightfully entitled.13 This notwithstanding, the records show that respondent elected Filipino citizenship when she reached the age of majority. She registered as a voter in Misamis Oriental when she was 18 years old.14 The exercise of the right of suffrage and the participation in election exercises constitute a positive act of election of Philippine citizenship.15 In its second assignment of error, the Republic assails the Court of Appeals’ decision in allowing respondent to use her father’s surname despite its finding that she is illegitimate. The Republic’s submission is misleading. The Court of Appeals did not allow respondent to use her father’s surname. What it did allow was the correction of her father’s misspelled surname which she has been using ever since she can remember. In this regard, respondent does not need a court pronouncement for her to use her father’s surname. We agree with the Court of Appeals when it held: Firstly, Petitioner-appellee is now 47 years old. To bar her at this time from using her father’s surname which she has used for four decades without any known objection from anybody, would only sow confusion. Concededly, one of the reasons allowed for changing one’s name or surname is to avoid confusion. Secondly, under Sec. 1 of Commonwealth Act No. 142, the law regulating the use of aliases, a person is allowed to use a name "by which he has been known since childhood." Thirdly, the Supreme Court has already addressed the same issue. In Pabellar v. Rep. of the Phils.,16 we held: Section 1 of Commonwealth Act No. 142, which regulates the use of aliases, allows a person to use a name "by which he has been known since childhood" (Lim Hok Albano v. Republic, 104 Phil. 795; People v. Uy Jui Pio, 102 Phil. 679; Republic v. Tañada, infra). Even legitimate children cannot enjoin the illegitimate children of their father from using his surname (De Valencia v. Rodriguez, 84 Phil. 222).17 While judicial authority is required for a change of name or surname,18 there is no such requirement for the continued use of a surname which a person has already been using since childhood.19

The doctrine that disallows such change of name as would give the false impression of family relationship remains valid but only to the extent that the proposed change of name would in great probability cause prejudice or future mischief to the family whose surname it is that is involved or to the community in general.20 In this case, the Republic has not shown that the Yu family in China would probably be prejudiced or be the object of future mischief. In respondent’s case, the change in the surname that she has been using for 40 years would even avoid confusion to her community in general. WHEREFORE, in view of the foregoing, the instant petition for review is DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 68893 dated May 29, 2002, is AFFIRMED. Accordingly, the Civil Registrar of Iligan City is DIRECTED to make the following corrections in the birth record of respondent Chule Y. Lim, to wit: 1. Her family name from "YO" to "YU"; 2. Her father’s name from "YO DIU TO (CO TIAN)" to "YU DIOTO (CO TIAN)"; 3. Her status from "legitimate" to "illegitimate" by changing "YES" to "NO" in answer to the question "LEGITIMATE?"; and, 4. Her citizenship from "Chinese" to "Filipino". SO ORDERED. Davide, Jr., C.J., (Chairman), Panganiban, Carpio, and Azcuna, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 120295 June 28, 1996 JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents. G.R. No. 123755 June 28, 1996 RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents. PANGANIBAN, J.:p

The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes8 dated May 27, 1995 was issued showing the following votes obtained by the candidates for the position of Governor of Sorsogon: Antonio H. Escudero, Jr. 51,060 Juan G. Frivaldo 73,440 Raul R. Lee 53,304 Isagani P. Ocampo 1,925 On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition9 praying for his proclamation as the duly-elected Governor of Sorsogon.

The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful governor of Sorsogon (i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive elections but who was twice declared by this Court to be disqualified to hold such office due to his alien citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru repatriation; (ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of Frivaldo should be considered void; that the electorate should be deemed to have intentionally thrown away their ballots; and that legally, he secured the most number of valid votes; or (iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of governor, but who according to prevailing jurisprudence should take over the said post inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in the contested office has occurred"? In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over pure legalisms. G.R. No. 123755 This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec), First Division,1 promulgated on December 19, 19952 and another Resolution of the Comelec en banc promulgated February 23, 19963 denying petitioner's motion for reconsideration. The Facts On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition4 with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any public office or position by reason of not yet being a citizen of the Philippines", and that his Certificate of Candidacy be canceled. On May 1, 1995, the Second Division of the Comelec promulgated a Resolution5 granting the petition with the following disposition6: WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the ground that he is NOT a citizen of the Philippines. Accordingly, respondent's certificate of candidacy is canceled. The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections. So, his candidacy continued and he was voted for during the elections held on said date. On May 11, 1995, the Comelec en banc7 affirmed the aforementioned Resolution of the Second Division.

In an order10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the Comelec en banc directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June 30, 1995, Lee was proclaimed governor of Sorsogon. On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 docketed as SPC No. 95-317, praying for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee on Naturalization in September 1994 had been granted". As such, when "the said order (dated June 21, 1995) (of the Comelec) . . . was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor . . ." In the alternative, he averred that pursuant to the two cases of Labo vs. Comelec,12 the Vice-Governor - not Lee - should occupy said position of governor. On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution13 holding that Lee, "not having garnered the highest number of votes," was not legally entitled to be proclaimed as duly-elected governor; and that Frivaldo, "having garnered the highest number of votes, and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 . . . (is) qualified to hold the office of governor of Sorsogon"; thus: PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the Petition. Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to law, he not having garnered the highest number of votes to warrant his proclamation. Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of Canvassers is directed to immediately reconvene and, on the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the duly elected Governor of Sorsogon having garnered the highest number of votes, and he having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 and, thus, qualified to hold the office of Governor of Sorsogon. Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the Commission is directed to notify His Excellency the President of the Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of Sorsogon of this resolution immediately upon the due implementation thereof. On December 26, 1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in its Resolution 14 promulgated on February 23, 1996. On

February 26, 1996, the present petition was filed. Acting on the prayer for a temporary restraining order, this Court issued on February 27, 1996 a Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing of this petition." The Issues in G.R. No. 123755 Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following propositions"15: First -- The initiatory petition below was so far insufficient in form and substance to warrant the exercise by the COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted without jurisdiction in taking cognizance of and deciding said petition; Second -- The judicially declared disqualification of respondent was a continuing condition and rendered him ineligible to run for, to be elected to and to hold the Office of Governor; Third -- The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive as to cure his ineligibility and qualify him to hold the Office of Governor; and Fourth -- Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's proclamation as duly elected Governor of Sorsogon. G.R. No. 120295 This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at issue in G.R. No. 123755, as follows: 1. Resolution16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from running for governor of Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen of the Philippines"; 2. Resolution17 of the Comelec en banc, promulgated on May 11, 1995; and 3. Resolution18 of the Comelec en banc, promulgated also on May 11, 1995 suspending the proclamation of, among others, Frivaldo. The Facts and the Issue The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the above-mentioned resolutions on a different ground: that under Section 78 of the Omnibus Election Code, which is reproduced hereinunder: Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election. (Emphasis supplied.)

By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are intimately related in their factual environment and are identical in the ultimate question raised, viz., who should occupy the position of governor of the province of Sorsogon. On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file simultaneously their respective memoranda. The Consolidated Issues From the foregoing submissions, the consolidated issues may be restated as follows: 1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when? 2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his eligibility to run for, be elected to or hold the governorship of Sorsogon? 3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 considering that said petition is not "a pre-proclamation case, an election protest or a quo warranto case"? 4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing jurisprudence? 5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered within the period referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days before the elections"? The First Issue: Frivaldo's Repatriation The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the other matters raised are secondary to this. The Local Government Code of 199119 expressly requires Philippine citizenship as a qualification for elective local officials, including that of provincial governor, thus: Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (b) Candidates for the position of governor, vice governor or member of the sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day. xxx

xxx

xxx

the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the period allowed by law" i.e., "not later than fifteen days before the election."

Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it is therefore incumbent upon him to show that he has reacquired citizenship; in fine, that he possesses the qualifications prescribed under the said statute (R.A. 7160).

Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for disqualification within the period of fifteen days prior to the election as provided by law is a jurisdictional defect which renders the said Resolutions null and void.

Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation. Frivaldo told this Court in G.R. No. 10465422 and during the oral argument in this case that he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed to materialize,

notwithstanding the endorsement of several members of the House of Representatives" due, according to him, to the "maneuvers of his political rivals." In the same case, his attempt at naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects. Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections to boot. Moreover, he now boasts of having successfully passed through the third and last mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General himself, who was the prime opposing counsel in the previous cases he lost, this time, as counsel for co-respondent Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that he -- not Lee -- should have been proclaimed as the duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said date since, clearly and unquestionably, he garnered the highest number of votes in the elections and since at that time, he already reacquired his citizenship. En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we shall now discuss in seriatim. First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then President Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution, forbade the grant of citizenship by Presidential Decree or Executive Issuances as the same poses a serious and contentious issue of policy which the present government, in the exercise of prudence and sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution", adding that in her memorandum dated March 27, 1987 to the members of the Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them "to cease and desist from undertaking any and all proceedings within your functional area of responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended."23 This memorandum dated March 27, 198724 cannot by any stretch of legal hermeneutics be construed as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones 25 and a repeal may be express or implied. It is obvious that no express repeal was made because then President Aquino in her memorandum -- based on the copy furnished us by Lee -- did not categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal effect. In fact, she did not even mention it specifically by its number or text. On the other hand, it is a basic rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly repugnant and patently inconsistent that they cannot co-exist".26 The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987 Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could be treated as an executive policy addressed to the Special Committee to halt the acceptance and processing of applications for repatriation pending whatever "judgment the first Congress under the 1987 Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the first Congress -- once created -- to deal with the matter. If she had intended to repeal such law, she should have unequivocally said so instead of referring the matter to Congress. The fact is she carefully couched her presidential issuance in terms that clearly indicated the intention of "the present government, in the exercise of prudence and sound discretion" to leave the matter of repeal to the new Congress. Any other interpretation of the said Presidential Memorandum, such as is now being proffered to the Court by Lee, would visit unmitigated violence not only upon statutory construction but on common sense as well. Second, Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," asserting that Frivaldo's application therefor was "filed on June 29, 1995 . . . (and) was approved in just one day or on June 30, 1995 . . .", which "prevented a judicious review and evaluation of the merits thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President in Malacañang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the Special Committee was reactivated only on June 8, 1995, when presumably the said Committee started processing his application. On June 29, 1995, he filled up and re-

submitted the FORM that the Committee required. Under these circumstances, it could not be said that there was "indecent haste" in the processing of his application. Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was intended solely for the personal interest of respondent,"27 the Solicitor General explained during the oral argument on March 19, 1996 that such allegation is simply baseless as there were many others who applied and were considered for repatriation, a list of whom was submitted by him to this Court, through a Manifestation28 filed on April 3, 1996. On the basis of the parties' submissions, we are convinced that the presumption of regularity in the performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a ground to conclude that such proceedings were necessarily tainted. After all, the requirements of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In fact, P.D. 72529 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left to the Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a first-time entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his country and his province prior to his naturalization in the United States -- a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace -- and who, after the fall of the dictator and the re-establishment of democratic space, wasted no time in returning to his country of birth to offer once more his talent and services to his people. So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation argues convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality of Frivaldo's repatriation should have been pursued before the Committee itself, and, failing there, in the Office of the President, pursuant to the doctrine of exhaustion of administrative remedies. Third, Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code "must exist on the date of his election, if not when the certificate of candidacy is filed," citing our decision in G.R. 10465430 which held that "both the Local Government Code and the Constitution require that only Philippine citizens can run and be elected to public office." Obviously, however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was valid or not -- and NOT the effective date thereof. Since the Court held his naturalization to be invalid, then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the Court. Which question we shall now directly rule on. Under Sec. 39 of the Local Government Code, "(a)n elective local official must be: * a citizen of the Philippines; * a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected; * a resident therein for at least one (1) year immediately preceding the day of the election; * able to read and write Filipino or any other local language or dialect. * In addition, "candidates for the position of governor . . . must be at least twenty-three (23) years of age on election day. From the above, it will be noted that the law does not specify any particular date or time when the candidate must possess citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of election) and age (at least twenty three years of age on election day). Philippine citizenship is an indispensable requirement for holding an elective public office,31 and the purpose of the citizenship qualification is none other than to ensure

that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 -- the very day32 the term of office of governor (and other elective officials) began -- he was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This is the liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with the purpose for which such law was enacted. So too, even from a literal (as distinguished from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be required at the time of election or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such qualifications -- unless otherwise expressly conditioned, as in the case of age and residence -- should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term -- in this case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead achieved by construing the citizenship qualification as applying to the time of proclamation of the elected official and at the start of his term. But perhaps the more difficult objection was the one raised during the oral argument34 to the effect that the citizenship qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered voter". And, under the law35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter -- much less a validly registered one -- if he was not a citizen at the time of such registration. The answer to this problem again lies in discerning the purpose of the requirement. If the law intended the citizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected." It should be emphasized that the Local Government Code requires an elective official to be a registered voter. It does not require him to vote actually. Hence, registration -- not the actual voting -- is the core of this "qualification". In other words, the law's purpose in this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern -- and not anywhere else. Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -that he "was and is a registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration . . . In fact, he cast his vote in his precinct on May 8, 1995."36

very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible. But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETROACTED to the date of the filing of his application on August 17, 1994. It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive effect, unless the contrary is provided." But there are settled exceptions40 to this general rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS. According to Tolentino,41 curative statutes are those which undertake to cure errors and irregularities, thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and contracts which otherwise would not produce their intended consequences by reason of some statutory disability or failure to comply with some technical requirement. They operate on conditions already existing, and are necessarily retroactive in operation. Agpalo,42 on the other hand, says that curative statutes are "healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are intended to supply defects, abridge superfluities in existing laws, and curb certain evils. . . . By their very nature, curative statutes are retroactive . . . (and) reach back to past events to correct errors or irregularities and to render valid and effective attempted acts which would be otherwise ineffective for the purpose the parties intended." On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a retrospective law, nor within the general rule against the retrospective operation of statutes.43 A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino women (who) had lost their Philippine citizenship by marriage to aliens" and who could not, under the existing law (C.A. No. 63, as amended) avail of repatriation until "after the death of their husbands or the termination of their marital status" and who could neither be benefitted by the 1973 Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine citizenship . . ." because "such provision of the new Constitution does not apply to Filipino women who had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these women -- the right to re-acquire Filipino citizenship even during their marital coverture, which right did not exist prior to P.D. 725. On the other hand, said statute also provided a new remedy and a new right in favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to re-acquire Philippine citizenship", because prior to the promulgation of P.D. 725 such former Filipinos would have had to undergo the tedious and cumbersome process of naturalization, but with the advent of P.D. 725 they could now re-acquire their Philippine citizenship under the simplified procedure of repatriation. The Solicitor General44 argues:

So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has always been a registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then he voted again in 1995. In fact, his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter and he was allowed to vote as in fact, he voted in all the previous elections including on May 8, 1995."3 7 It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected. There is yet another reason why the prime issue of citizenship should be reckoned from the date of proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section 253 of the Omnibus Election Code 38 gives any voter, presumably including the defeated candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission. And since, at the

By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are intended to supply defects, abridge superfluities in existing laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041). In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C.A. No. 63 wherein married Filipino women are allowed to repatriate only upon the death of their husbands, and natural-born Filipinos who lost their citizenship by naturalization and other causes faced the difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by naturalization. Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its provisions are considered essentially remedial and curative.

In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation is given to a statute or amendment where the intent that it should so operate clearly appears from a consideration of the act as a whole, or from the terms thereof."45 It is obvious to the Court that the statute was meant to "reach back" to those persons, events and transactions not otherwise covered by prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil right equally as important as the freedom of speech, liberty of abode, the right against unreasonable searches and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intent to give retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a remedial statute must be so construed as to make it effect the evident purpose for which it was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied although the statute does not in terms so direct, unless to do so would impair some vested right or violate some constitutional guaranty."46 This is all the more true of P.D. 725, which did not specify any restrictions on or delimit or qualify the right of repatriation granted therein.

Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed settled. Inasmuch as he is considered as having been repatriated -- i.e., his Filipino citizenship restored -- as of August 17, 1994, his previous registration as a voter is likewise deemed validated as of said date.

At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo considering that said law was enacted on June 5, 1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994?

By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government."

While it is true that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless, it is not only the law itself (P.D. 725) which is to be given retroactive effect, but even the repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of the legislative authority that the law should apply to past events -- i.e., situations and transactions existing even before the law came into being -- in order to benefit the greatest number of former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed right of citizenship, and such legislative intention is to be given the fullest effect and expression, then there is all the more reason to have the law apply in a retroactive or retrospective manner to situations, events and transactions subsequent to the passage of such law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application. As earlier mentioned, there is nothing in the law that would bar this or would show a contrary intention on the part of the legislative authority; and there is no showing that damage or prejudice to anyone, or anything unjust or injurious would result from giving retroactivity to his repatriation. Neither has Lee shown that there will result the impairment of any contractual obligation, disturbance of any vested right or breach of some constitutional guaranty. Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation of Philippine laws and whatever defects there were in his nationality should now be deemed mooted by his repatriation.

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?"49 We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenship -- long before May 8, 1995. At best, Frivaldo was stateless in the interim -when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship."50 On this point, we quote from the assailed Resolution dated December 19, 1995:51

These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse.52 The Second Issue: a Continuing Disqualification?

Is

Lack

of

Citizenship

Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028 as affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after five (5) days or on May 17, 1995, no restraining order having been issued by this Honorable Court.54 Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was already a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become final and executory way before the 1995 elections, and these "judicial pronouncements of his political status as an American citizen absolutely and for all time disqualified (him) from running for, and holding any public office in the Philippines." We do not agree.

Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to delay the processing of applications for any substantial length of time, then the former Filipinos who may be stateless, as Frivaldo -- having already renounced his American citizenship -- was, may be prejudiced for causes outside their control. This should not be. In case of doubt in the interpretation or application of laws, it is to be presumed that the law-making body intended right and justice to prevail.4 7

It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992 elections. That he was disqualified for such elections is final and can no longer be changed. In the words of the respondent Commission (Second Division) in its assailed Resolution:55

And as experience will show, the Special Committee was able to process, act upon and grant applications for repatriation within relatively short spans of time after the same were filed.48 The fact that such interregna were relatively insignificant minimizes the likelihood of prejudice to the government as a result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the government is possible only where a person's repatriation has the effect of wiping out a liability of his to the government arising in connection with or as a result of his being an alien, and accruing only during the interregnum between application and approval, a situation that is not present in the instant case.

The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino citizen and thus disqualified for the purpose of the 1988 and 1992 elections. However, there is no record of any "final judgment" of the disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the Commission said in its Order of June 21, 1995 (implemented on June 30, 1995), directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen "having been declared by the Supreme Court in its Order dated March 25, 1995, not a citizen of the Philippines." This declaration of the Supreme Court, however, was in connection with the 1992 elections.

And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as having become effective as of the date of his application, i.e., on August 17, 1994. This being so, all questions about his possession of the nationality qualification -- whether at the date of proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March 20, 1995) would become moot.

Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of Immigration,56 we held:

Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered res judicata, hence it has to be threshed out again and again, as the occasion demands. The Third Issue: Over The Petition in SPC No. 95-317

Comelec's

Jurisdiction

Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317 because the only "possible types of proceedings that may be entertained by the Comelec are a pre-proclamation case, an election protest or a quo warranto case". Again, Lee reminds us that he was proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on July 6, 1995 -- "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's "recourse was to file either an election protest or a quo warranto action." This argument is not meritorious. The Constitution57 has given the Comelec ample power to "exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective . . . provincial . . . officials." Instead of dwelling at length on the various petitions that Comelec, in the exercise of its constitutional prerogatives, may entertain, suffice it to say that this Court has invariably recognized the Commission's authority to hear and decide petitions for annulment of proclamations -- of which SPC No. 95-317 obviously is one.58 Thus, in Mentang vs. COMELEC,59 we ruled: The petitioner argues that after proclamation and assumption of office, a pre-proclamation controversy is no longer viable. Indeed, we are aware of cases holding that pre-proclamation controversies may no longer be entertained by the COMELEC after the winning candidate has been proclaimed. (citing Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that the proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to make such declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.) The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same. The Fourth Issue: Was Lee's Proclamation Valid? Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons: First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he (Lee) was not the choice of the sovereign will," and in Aquino vs. COMELEC,61 Lee is "a second placer, . . . just that, a second placer." In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid Labo62 case, as follows: The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected. But such holding is qualified by the next paragraph, thus:

But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that petitioner Labo was notoriously known as an ineligible candidate, much less the electorate as having known of such fact. On the contrary, petitioner Labo was even allowed by no less than the Comelec itself in its resolution dated May 10, 1992 to be voted for the office of the city Payor as its resolution dated May 9, 1992 denying due course to petitioner Labo's certificate of candidacy had not yet become final and subject to the final outcome of this case. The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his certificate of candidacy was not yet final on election day as there was in both cases a pending motion for reconsideration, for which reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he was. Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness within the realm of notoriety;" in other words, that the voters intentionally wasted their ballots knowing that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that the vicegovernor -- and not Lee -- should be pro- claimed, since in losing the election, Lee was, to paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic teaching of Labo: The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch as he obtained the highest number of votes in the 1995 elections, he -- not Lee -- should be proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected. The Fifth Issue: Election Code Mandatory?

Is

Section

78

of

the

In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of citizenship should be annulled because they were rendered beyond the fifteen (15) day period prescribed by Section 78, of the Omnibus Election Code which reads as follows: Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided after notice and hearing, not later than fifteen days before the election. (Emphasis supplied.) This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en banc63 on February 23, 1996; which both upheld his election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for disqualifications even after the elections, thus: Sec. 6. Effect of Disqualification Case. -- Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the

action, inquiry or protest and upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (emphasis supplied) Refutation Mr. Justice Davide's Dissent

of

In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a purely academic distinction because the said issuance is not a statute that can amend or abrogate an existing law. The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case;64 viz., "(u)nder CA No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by . . . repatriation". He also contends that by allowing Frivaldo to register and to remain as a registered voter, the Comelec and in effect this Court abetted a "mockery" of our two previous judgments declaring him a non-citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as discussed earlier, legally cured whatever defects there may have been in his registration as a voter for the purpose of the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992, which were the subjects of such previous rulings. Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing the denial of a certificate of candidacy on the ground of a false material representation therein as required by Section 74. Citing Loong, he then states his disagreement with our holding that Section 78 is merely directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid because they were issued "not later than fifteen days before the election" as prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of discretion because "Section 6 of R.A. 6646 authorizes the Comelec to try and decide disqualifications even after the elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is merely directory", we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295". One other point. Loong, as quoted in the dissent, teaches that a petition to deny due course under Section 78 must be filed within the 25-day period prescribed therein. The present case however deals with the period during which the Comelec may decide such petition. And we hold that it may be decided even after the fifteen day period mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec even after the elections is valid but Loong held that a petition filed beyond the 25-day period is out of time. There is no inconsistency nor conflict. Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even the second Frivaldo) decision did not directly involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections. That is settled. But his supervening repatriation has changed his political status -- not in 1988 or 1992, but only in the 1995 elections. Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, saying that "informal renunciation or abandonment is not a ground to lose American citizenship". Since our courts are charged only with the duty of determining who are Philippine nationals, we cannot rule on the legal question of who are or who are not Americans. It is basic in international law that a State determines ONLY those who are its own citizens -- not who are the citizens of other countries.65 The issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such finding has not been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding and final. The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous elections, should be declared winner because "Frivaldo's ineligibility for being an American was publicly known". First, there is absolutely no empirical evidence for such "public" knowledge. Second, even if there is, such knowledge can be truepost facto only of the last two previous elections. Third, even the Comelec and now this Court were/are still deliberating on his nationality before, during and after the 1995 elections. How then can there be such "public" knowledge?

Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of electivelocal officials, i.e., candidates, and not elected officials, and that the citizenship qualification [under par. (a) of that section] must be possessed by candidates, not merely at the commencement of the term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to "candidates". If the qualifications under par. (a) were intended to apply to "candidates" and not elected officials, the legislature would have said so, instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the citizenship qualification should be possessed at election day or prior thereto, it would have specifically stated such detail, the same way it did in pars. (b) to (f) far other qualifications of candidates for governor, mayor, etc. Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground, among others, that the law specifically provides that it is only after taking the oath of allegiance that applicants shall be deemed to have reacquired Philippine citizenship. We do not question what the provision states. We hold however that the provision should be understood thus: that after taking the oath of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or repatriation) is deemed for all purposes and intents to have retroacted to the date of his application therefor. In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to Section 39 of the Local Authority Code, as well as regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier in this Decision. Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of Law." We agree -- we must all follow the rule of law. But that is NOT the issue here. The issue is how should the law be interpreted and applied in this case so it can be followed, so it can rule! At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections: literal or liberal; the letter or the spirit, the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience. EPILOGUE In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present, not having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the remedial or curative nature of the law granting him a new right to resume his political status and the legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given retroactive effect as of the date of his application therefor, during the pendency of which he was stateless, he having given up his U.S. nationality. Thus, in contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of the term of office of governor, and should have been proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon is deemed to have been validated as of said date as well. The foregoing, of course, are precisely consistent with our holding that lack of the citizenship requirement is not a continuing disability or disqualification to run for and hold public office. And once again, we emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to hear and decide petitions for annulment of proclamations. This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people,66 for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held: . . . (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice

of public officials may not be defeated by mere technical objections (citations omitted).67 The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic68 to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. In this undertaking, Lee has miserably failed. In Frivaldo's case. it would have been technically easy to find fault with his cause. The Court could have refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and thus hold his consequent dual citizenship as a disqualification "from running for any elective local position." But the real essence of justice does not emanate from quibblings over patchwork legal technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in the larger social context consistent with Frivaldo's unique situation approximating venerability in Philippine political life. Concededly, he sought American citizenship only to escape the clutches of the dictatorship. At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to this country. At the first opportunity, he returned to this land, and sought to serve his people once more. The people of Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this Republic every time he filed his certificate of candidacy and during his failed naturalization bid. And let it not be overlooked, his demonstrated tenacity and sheer determination to re-assume his nationality of birth despite several legal set-backs speak more loudly, in spirit, in fact and in truth than any legal technicality, of his consuming intention and burning desire to re-embrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to and love of country as well as nobility of purpose cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world. But he opted, nay, single-mindedly insisted on returning to and serving once more his struggling but beloved land of birth. He therefore deserves every liberal interpretation of the law which can be applied in his favor. And in the final analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most certainly deserve to be governed by a leader of their overwhelming choice. WHEREFORE, in consideration of the foregoing: (1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent Commission are AFFIRMED. (2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has no merit. No costs. SO ORDERED. Padilla, Regalado, Romero, Bellosillo, Francisco, Hermosisima, Jr. and Torres, Jr., JJ., concur. Melo, Vitug and Kapunan, JJ., concurs in the result. Narvasa, C.J. and Mendoza, J., took no part.

EN BANC G.R. No. 142840 May 7, 2001 ANTONIO BENGSON III, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C. CRUZ, respondents.

not qualified to become a member of the House of Representatives since he is not a natural-born citizen as required under Article VI, section 6 of the Constitution.4 On March 2, 2000, the HRET rendered its decision5 dismissing the petition for quo warranto and declaring Cruz the duly elected Representative of the Second District of Pangasinan in the May 1998 elections. The HRET likewise denied petitioner's motion for reconsideration of the decision in its resolution dated April 27, 2000.6

CONCURRING OPINION DISSENTING OPINION KAPUNAN, J.: The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the constitutional requirement that "no person shall be a Member of the House of Representative unless he is a natural-born citizen."1

Petitioner thus filed the present petition for certiorari assailing the HRET's decision on the following grounds: 1. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it ruled that private respondent is a natural-born citizen of the Philippines despite the fact that he had ceased being such in view of the loss and renunciation of such citizenship on his part.

Respondent Cruz was a natural-born citizen of the Philippines. He was born in San Clemente, Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then applicable was the 1935 Constitution.2

2. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it considered private respondent as a citizen of the Philippines despite the fact he did not validly acquire his Philippine citizenship.

On November 5, 1985, however, respondent Cruz enlisted in the United States Marine Corps and without the consent of the Republic of the Philippines, took an oath of allegiance to the United States. As a Consequence, he lost his Filipino citizenship for under Commonwealth Act No. 63, section 1(4), a Filipino citizen may lose his citizenship by, among other, "rendering service to or accepting commission in the armed forces of a foreign country." Said provision of law reads:

3. Assuming that private respondent's acquisition of Philippine citizenship was invalid, the HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it dismissed the petition despite the fact that such reacquisition could not legally and constitutionally restore his natural-born status.7

SECTION 1. How citizenship may be lost. – A Filipino citizen may lose his citizenship in any of the following ways and/or events:

The issue now before us is whether respondent Cruz, a natural-born Filipino who became an American citizen, can still be considered a natural-born Filipino upon his reacquisition of Philippine citizenship.

xxx (4) By rendering services to, or accepting commission in, the armed of a foreign country: Provided, That the rendering of service to, or the acceptance of such commission in, the armed forces of a foreign country, and the taking of an oath of allegiance incident thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his Philippine citizenship if either of the following circumstances is present: (a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with said foreign country; or (b) The said foreign country maintains armed forces on Philippine territory with the consent of the Republic of the Philippines: Provided, That the Filipino citizen concerned, at the time of rendering said service, or acceptance of said commission, and taking the oath of allegiance incident thereto, states that he does so only in connection with his service to said foreign country; And provided, finally, That any Filipino citizen who is rendering service to, or is commissioned in, the armed forces of a foreign country under any of the circumstances mentioned in paragraph (a) or (b), shall not be Republic of the Philippines during the period of his service to, or commission in, the armed forces of said country. Upon his discharge from the service of the said foreign country, he shall be automatically entitled to the full enjoyment of his civil and politically entitled to the full enjoyment of his civil political rights as a Filipino citizen x x x. Whatever doubt that remained regarding his loss of Philippine citizenship was erased by his naturalization as a U.S. citizen on June 5, 1990, in connection with his service in the U.S. Marine Corps. On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through repatriation under Republic Act No. 2630.3 He ran for and was elected as the Representative of the Second District of Pangasinan in the May 11, 1998 elections. He won by a convincing margin of 26,671 votes over petitioner Antonio Bengson III, who was then running for reelection.1âwphi1.nêt Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with respondent House of Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was

Petitioner asserts that respondent Cruz may no longer be considered a natural-born Filipino since he lost h is Philippine citizenship when he swore allegiance to the United States in 1995, and had to reacquire the same by repatriation. He insists that Article citizens are those who are from birth with out having to perform any act to acquire or perfect such citizenship. Respondent on the other hand contends that he reacquired his status as natural-born citizen when he was repatriated since the phrase "from birth" in Article IV, Section 2 refers to the innate, inherent and inborn characteristic of being a natural-born citizen. The petition is without merit. The 1987 Constitution enumerates who are Filipino citizens as follow: (1) Those who are citizens of the Philippines at the time of the adoption of this Constitution; (2) Those whose fathers or mothers are citizens of the Philippines; (3) Those born before January 17, 1973 of Filipino mother, who elect Philippine citizenship upon reaching the age of majority, and (4) Those who are naturalized in accordance with law.8 There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the naturalized citizen. A person who at the time of his birth is a citizen of a particular country, is a natural-born citizen thereof.9 As defined in the same Constitution, natural-born citizens "are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citezenship."10 On the other hand, naturalized citizens are those who have become Filipino citizens through naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law, which repealed the former Naturalization Law (Act

No. 2927), and by Republic Act No. 530.11 To be naturalized, an applicant has to prove that he possesses all the qualifications12 and none of the disqualification13 provided by law to become a Filipino citizen. The decision granting Philippine citizenship becomes executory only after two (2) years from its promulgation when the court is satisfied that during the intervening period, the applicant has (1) not left the Philippines; (2) has dedicated himself to a lawful calling or profession; (3) has not been convicted of any offense or violation of Government promulgated rules; or (4) committed any act prejudicial to the interest of the nation or contrary to any Government announced policies.14 Filipino citizens who have lost their citizenship may however reacquire the same in the manner provided by law. Commonwealth Act. No. (C.A. No. 63), enumerates the three modes by which Philippine citizenship may be reacquired by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress.15 Naturalization is mode for both acquisition and reacquisition of Philippine citizenship. As a mode of initially acquiring Philippine citizenship, naturalization is governed by Commonwealth Act No. 473, as amended. On the other hand, naturalization as a mode for reacquiring Philippine citizenship is governed by Commonwealth Act No. 63.16 Under this law, a former Filipino citizen who wishes to reacquire Philippine citizenship must possess certain qualifications17and none of the disqualification mentioned in Section 4 of C.A. 473.18 Repatriation, on the other hand, may be had under various statutes by those who lost their citizenship due to: (1) desertion of the armed forces;19 services in the armed forces of the allied forces in World War II;20 (3) service in the Armed Forces of the United States at any other time,21 (4) marriage of a Filipino woman to an alien;22 and (5) political economic necessity.23 As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking of an oath of allegiance to the Republic of the Philippine and registering said oath in the Local Civil Registry of the place where the person concerned resides or last resided. In Angat v. Republic,24 we held: xxx. Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the person desiring to reacquire Philippine citizenship would not even be required to file a petition in court, and all that he had to do was to take an oath of allegiance to the Republic of the Philippines and to register that fact with the civil registry in the place of his residence or where he had last resided in the Philippines. [Italics in the original.25 Moreover, repatriation results in the recovery of the original nationality.26 This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino. In respondent Cruz's case, he lost his Filipino citizenship when he rendered service in the Armed Forces of the United States. However, he subsequently reacquired Philippine citizenship under R.A. No. 2630, which provides:

by the HRET in its decision, the term "natural-born citizen" was first defined in Article III, Section 4 of the 1973 Constitution as follows: Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship. Two requisites must concur for a person to be considered as such: (1) a person must be a Filipino citizen birth and (2) he does not have to perform any act to obtain or perfect his Philippine citizenship. Under the 1973 Constitution definition, there were two categories of Filipino citizens which were not considered natural-born: (1) those who were naturalized and (2) those born before January 17, 1973,38 of Filipino mothers who, upon reaching the age of majority, elected Philippine citizenship. Those "naturalized citizens" were not considered natural-born obviously because they were not Filipino at birth and had to perform an act to acquire Philippine citizenship. Those born of Filipino mothers before the effectively of the 1973 Constitution were likewise not considered natural-born because they also had to perform an act to perfect their Philippines citizenship. The present Constitution, however, now consider those born of Filipino mothers before the effectivity of the 1973 Constitution and who elected Philippine citizenship upon reaching the majority age as natural-born. After defining who re natural-born citizens, Section 2 of Article IV adds a sentence: "Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens." Consequently, only naturalized Filipinos are considered not natural-born citizens. It is apparent from the enumeration of who are citizens under the present Constitution that there are only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily is natural-born Filipino. Noteworthy is the absence in said enumeration of a separate category for persons who, after losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-born or naturalized depending on the reasons for the loss of their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go through naturalization proceeding in order to reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House of Representatives. A final point. The HRET has been empowered by the Constitution to be the "sole judge" of all contests relating to the election, returns, and qualifications of the members of the House.29 The Court's jurisdiction over the HRET is merely to check "whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of the latter.30 In the absence thereof, there is no occasion for the Court to exercise its corrective power and annul the decision of the HRET nor to substitute the Court's judgement for that of the latter for the simple reason that it is not the office of a petition for certiorari to inquire into the correctness of the assailed decision.31 There is no such showing of grave abuse of discretion in this case. WHEREFORE, the petition is hereby DISMISSED. SO ORDERED.

Section 1. Any person who had lost his Philippine citizenship by rendering service to, or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United States, acquired United States citizenship, may reacquire Philippine citizenship by taking an oath of allegiance to the Republic of the Philippines and registering the same with Local Civil Registry in the place where he resides or last resided in the Philippines. The said oath of allegiance shall contain a renunciation of any other citizenship. Having thus taken the required oath of allegiance to the Republic and having registered the same in the Civil Registry of Magantarem, Pangasinan in accordance with the aforecited provision, respondent Cruz is deemed to have recovered his original status as a natural-born citizen, a status which he acquired at birth as the son of a Filipino father.27 It bears stressing that the act of repatriation allows him to recover, or return to, his original status before he lost his Philippine citizenship. Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had to perform an act to regain his citizenship is untenable. As correctly explained

Davide, Jr., C.J., Bellosillo, Puno, and JJ., concur. Melo, Vitug, Mendoza, no part. Panganiban, concurring opinion. Quisumbing, Buena, De Leon, Jr., on leave. Sandoval-Gutierrez, dissenting opinion. Pardo, Gonzaga-Reyes, concur on this and the concurring opinion of J. Panganiban Ynares-Santiago, certify majority opinion of J. Kapunan.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 176947 February 19, 2009 GAUDENCIO M. CORDORA, Petitioner, vs. COMMISSION ON ELECTIONS and GUSTAVO S. TAMBUNTING, Respondents. DECISION CARPIO, J.: The Case This is a petition for certiorari and mandamus, with prayer for the issuance of a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. In EO Case No. 05-17, Gaudencio M. Cordora (Cordora) accused Gustavo S. Tambunting (Tambunting) of an election offense for violating Section 74 in relation to Section 262 of the Omnibus Election Code. The Commission on Elections’ (COMELEC) En Banc dismissed Cordora’s complaint in a Resolution1 dated 18 August 2006. The present petition seeks to reverse the 18 August 2006 Resolution as well as the Resolution2 dated 20 February 2007 of the COMELEC En Banc which denied Cordora’s motion for reconsideration. The Facts

certificate which showed that he was born of a Filipino mother and an American father. Tambunting further denied that he was naturalized as an American citizen. The certificate of citizenship conferred by the US government after Tambunting’s father petitioned him through INS Form I-130 (Petition for Relative) merely confirmed Tambunting’s citizenship which he acquired at birth. Tambunting’s possession of an American passport did not mean that Tambunting is not a Filipino citizen. Tambunting also took an oath of allegiance on 18 November 2003 pursuant to Republic Act No. 9225 (R.A. No. 9225), or the Citizenship Retention and Reacquisition Act of 2003. Tambunting further stated that he has resided in the Philippines since birth. Tambunting has imbibed the Filipino culture, has spoken the Filipino language, and has been educated in Filipino schools. Tambunting maintained that proof of his loyalty and devotion to the Philippines was shown by his service as councilor of Parañaque. To refute Cordora’s claim that the number of years of residency stated in Tambunting’s certificates of candidacy is false because Tambunting lost his residency because of his naturalization as an American citizen, Tambunting contended that the residency requirement is not the same as citizenship. The Ruling of the COMELEC Law Department The COMELEC Law Department recommended the dismissal of Cordora’s complaint against Tambunting because Cordora failed to substantiate his charges against Tambunting. Cordora’s reliance on the certification of the Bureau of Immigration that Tambunting traveled on an American passport is not sufficient to prove that Tambunting is an American citizen. The Ruling of the COMELEC En Banc

In his complaint affidavit filed before the COMELEC Law Department, Cordora asserted that Tambunting made false assertions in the following items: That Annex A [Tambunting’s Certificate of Candidacy for the 2001 elections] and Annex B [Tambunting’s Certificate of Candidacy for the 2004 elections] state, among others, as follows, particularly Nos. 6, 9 and 12 thereof: 1. No. 6 – I am a Natural Born/Filipino Citizen 2. No. 9 – No. of years of Residence before May 14, 2001. 36 in the Philippines and 25 in the Constituency where I seek to be elected; 3. No. 12 – I am ELIGIBLE for the office I seek to be elected.3 (Boldface and capitalization in the original) Cordora stated that Tambunting was not eligible to run for local public office because Tambunting lacked the required citizenship and residency requirements. To disprove Tambunting’s claim of being a natural-born Filipino citizen, Cordora presented a certification from the Bureau of Immigration which stated that, in two instances, Tambunting claimed that he is an American: upon arrival in the Philippines on 16 December 2000 and upon departure from the Philippines on 17 June 2001. According to Cordora, these travel dates confirmed that Tambunting acquired American citizenship through naturalization in Honolulu, Hawaii on 2 December 2000. Cordora concluded: That Councilor Gustavo S. Tambunting contrary to the provision of Sec 74 (OEC): [sic] Re: CONTENTS OF CERTIFICATE OF CANDIDACY: which requires the declarant/affiant to state, among others, under oath, that he is a Filipino (No. 6), No. 9residence requirement which he lost when [he was] naturalized as an American Citizen on December 2, 2000 at [sic] Honolulu, Hawaii, knowingly and willfully affirmed and reiterated that he possesses the above basic requirements under No. 12 – that he is indeed eligible for the office to which he seeks to be elected, when in truth and in fact, the contrary is indubitably established by his own statements before the Philippine Bureau of Immigration x x x.4 (Emphases in the original) Tambunting, on the other hand, maintained that he did not make any misrepresentation in his certificates of candidacy. To refute Cordora’s claim that Tambunting is not a natural-born Filipino, Tambunting presented a copy of his birth

The COMELEC En Banc affirmed the findings and the resolution of the COMELEC Law Department. The COMELEC En Banc was convinced that Cordora failed to support his accusation against Tambunting by sufficient and convincing evidence. The dispositive portion of the COMELEC En Banc’s Resolution reads as follows: WHEREFORE, premises considered, the instant complaint is hereby DISMISSED for insufficiency of evidence to establish probable cause. SO ORDERED.5 Commissioner Rene V. Sarmiento (Commissioner Sarmiento) wrote a separate opinion which concurred with the findings of the En Banc Resolution. Commissioner Sarmiento pointed out that Tambunting could be considered a dual citizen. Moreover, Tambunting effectively renounced his American citizenship when he filed his certificates of candidacy in 2001 and 2004 and ran for public office. Cordora filed a motion for reconsideration which raised the same grounds and the same arguments in his complaint. In its Resolution promulgated on 20 February 2007, the COMELEC En Banc dismissed Cordora’s motion for reconsideration for lack of merit. The Issue Cordora submits that the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it declared that there is no sufficient evidence to support probable cause that may warrant the prosecution of Tambunting for an election offense. Cordora’s petition is not an action to disqualify Tambunting because of Tambunting’s failure to meet citizenship and residency requirements. Neither is the present petition an action to declare Tambunting a non-Filipino and a non-resident. The present petition seeks to prosecute Tambunting for knowingly making untruthful statements in his certificates of candidacy. The Ruling of the Court The petition has no merit. We affirm the ruling of the COMELEC En Banc.

Whether there is Probable Cause to Hold Tambunting for Trial for Having Committed an Election Offense

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;

There was no grave abuse of discretion in the COMELEC En Banc’s ruling that there is no sufficient and convincing evidence to support a finding of probable cause to hold Tambunting for trial for violation of Section 74 in relation to Section 262 of the Omnibus Election Code.

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers’ country such children are citizens of that country;

Probable cause constitutes those facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed. Determining probable cause is an intellectual activity premised on the prior physical presentation or submission of documentary or testimonial proofs either confirming, negating or qualifying the allegations in the complaint.6 Section 74 of the Omnibus Election Code reads as follows: Contents of certificate of candidacy. — The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; x x x the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. xxx The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a statement in duplicate containing his bio-data and program of government not exceeding one hundred words, if he so desires. Section 262 of the Omnibus Election Code, on the other hand, provides that violation of Section 74, among other sections in the Code, shall constitute an election offense. Tambunting’s Dual Citizenship Tambunting does not deny that he is born of a Filipino mother and an American father. Neither does he deny that he underwent the process involved in INS Form I-130 (Petition for Relative) because of his father’s citizenship. Tambunting claims that because of his parents’ differing citizenships, he is both Filipino and American by birth. Cordora, on the other hand, insists that Tambunting is a naturalized American citizen. We agree with Commissioner Sarmiento’s observation that Tambunting possesses dual citizenship. Because of the circumstances of his birth, it was no longer necessary for Tambunting to undergo the naturalization process to acquire American citizenship. The process involved in INS Form I-130 only served to confirm the American citizenship which Tambunting acquired at birth. The certification from the Bureau of Immigration which Cordora presented contained two trips where Tambunting claimed that he is an American. However, the same certification showed nine other trips where Tambunting claimed that he is Filipino. Clearly, Tambunting possessed dual citizenship prior to the filing of his certificate of candidacy before the 2001 elections. The fact that Tambunting had dual citizenship did not disqualify him from running for public office.7 Requirements for dual citizens from birth who desire to run for public office We deem it necessary to reiterate our previous ruling in Mercado v. Manzano, wherein we ruled that dual citizenship is not a ground for disqualification from running for any elective local position. To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship:

(3) Those who marry aliens if by the laws of the latter’s country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition. xxx [I]n including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to "dual allegiance." Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control." By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on §40(d) between Senators Enrile and Pimentel clearly shows: SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual citizenship" is disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural-born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship. On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position? SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships. SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen,? No one can renounce. There are such countries in the world.1avvphi1 SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered a Filipino citizen. SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentleman’s example, if he does not renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship." SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic. SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships, then he will probably fall under this disqualification.8 (Emphasis supplied) We have to consider the present case in consonance with our rulings in Mercado v. Manzano,9 Valles v. COMELEC,10 and AASJS v. Datumanong.11 Mercado and Valles involve similar operative facts as the present case. Manzano and Valles, like Tambunting, possessed dual citizenship by the circumstances of their birth. Manzano was born to Filipino parents in the United States which follows the doctrine of jus soli. Valles was born to an Australian mother and a Filipino father in Australia. Our rulings in Manzano and Valles stated that dual citizenship is different from dual allegiance both by cause and, for those desiring to run for public office, by effect. Dual citizenship is involuntary and arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. Thus, like any other natural-born Filipino, it is enough for a person with dual citizenship who seeks public office to file his certificate of candidacy and swear to the oath of allegiance contained therein. Dual allegiance, on the other hand, is brought about by the individual’s active participation in the naturalization process. AASJS states that, under R.A. No. 9225, a Filipino who becomes a naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the supreme authority of the Republic of the Philippines. The act of taking an oath of allegiance is an implicit renunciation of a naturalized citizen’s foreign citizenship. R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was enacted years after the promulgation of Manzano and Valles. The oath found in Section 3 of R.A. No. 9225 reads as follows: I __________ , solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion. In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual citizenship per se, but with the status of naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization.12 Section 5(3) of R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and desire to run for elective public office in the Philippines shall "meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of filing the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath" aside from the oath of allegiance prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship served as the bases for our recent rulings in Jacot v. Dal and COMELEC,13 Velasco v. COMELEC,14 and Japzon v. COMELEC,15 all of which involve natural-born Filipinos who later became naturalized citizens of another country and thereafter ran for elective office in the Philippines. In the present case, Tambunting, a natural-born Filipino, did not subsequently become a naturalized citizen of another country. Hence, the twin requirements in R.A. No. 9225 do not apply to him. Tambunting’s residency Cordora concluded that Tambunting failed to meet the residency requirement because of Tambunting’s naturalization as an American. Cordora’s reasoning fails because Tambunting is not a naturalized American. Moreover, residency, for the purpose of election laws, includes the twin elements of the fact of residing in a fixed place and the intention to return there permanently,16 and is not dependent upon citizenship. In view of the above, we hold that Cordora failed to establish that Tambunting indeed willfully made false entries in his certificates of candidacy. On the contrary,

Tambunting sufficiently proved his innocence of the charge filed against him. Tambunting is eligible for the office which he sought to be elected and fulfilled the citizenship and residency requirements prescribed by law. WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions of the Commission on Elections En Banc dated 18 August 2006 and 20 February 2007 in EO Case No. 0517. SO ORDERED. ANTONIO Associate Justice

T.

CARPIO

THIRD DIVISION G.R. No. 199113, March 18, 2015 RENATO M. DAVID, Petitioner, v. EDITHA A. AGBAY AND PEOPLE OF THE PHILIPPINES, Respondents. DECISION VILLARAMA, JR., J.: This is a petition for review under Rule 45 seeking to reverse the Order1 dated October 8, 2011 of the Regional Trial Court (RTC) of Pinamalayan, Oriental Mindoro, which denied the petition for certiorari filed by Renato M. David (petitioner). Petitioner assailed the Order2 dated March 22, 2011 of the Municipal Trial Court (MTC) of Socorro, Oriental Mindoro denying his motion for redetermination of probable cause. The

factual

antecedents:chanRoblesvirtualLawlibrary

In 1974, petitioner migrated to Canada where he became a Canadian citizen by naturalization. Upon their retirement, petitioner and his wife returned to the Philippines. Sometime in 2000, they purchased a 600-square meter lot along the beach in Tambong, Gloria, Oriental Mindoro where they constructed a residential house. However, in the year 2004, they came to know that the portion where they built their house is public land and part of the salvage zone. On April 12, 2007, petitioner filed a Miscellaneous Lease Application3 (MLA) over the subject land with the Department of Environment and Natural Resources (DENR) at the Community Environment and Natural Resources Office (CENRO) in Socorro. In the said application, petitioner indicated that he is a Filipino citizen. Private respondent Editha A. Agbay opposed the application on the ground that petitioner, a Canadian citizen, is disqualified to own land. She also filed a criminal complaint for falsification of public documents under Article 172 of the Revised Penal Code (RPC) (I.S. No. 08-6463) against the petitioner. Meanwhile, petitioner re-acquired his Filipino citizenship under the provisions of Republic Act No. 9225,4(R.A. 9225) as evidenced by Identification Certificate No. 26610-075 issued by the Consulate General of the Philippines (Toronto) on October 11, 2007. In his defense, petitioner averred that at the time he filed his application, he had intended to re-acquire Philippine citizenship and that he had been assured by a CENRO officer that he could declare himself as a Filipino. He further alleged that he bought the property from the Agbays who misrepresented to him that the subject property was titled land and they have the right and authority to convey the same. The dispute had in fact led to the institution of civil and criminal suits between him and private respondent’s family. On January 8, 2008,6 the Office of the Provincial Prosecutor issued its Resolution7 finding probable cause to indict petitioner for violation of Article 172 of the RPC and recommending the filing of the corresponding information in court. Petitioner challenged the said resolution in a petition for review he filed before the Department of Justice (DOJ). On June 3, 2008, the CENRO issued an order rejecting petitioner’s MLA. It ruled that petitioner’s subsequent re-acquisition of Philippine citizenship did not cure the defect in his MLA which was void ab initio.8chanroblesvirtuallawlibrary In the meantime, on July 26, 2010, the petition for review filed by petitioner was denied by the DOJ which held that the presence of the elements of the crime of falsification of public document suffices to warrant indictment of the petitioner notwithstanding the absence of any proof that he gained or intended to injure a third person in committing the act of falsification.9 Consequently, an information for Falsification of Public Document was filed before the MTC (Criminal Case No. 2012) and a warrant of arrest was issued against the petitioner. On February 11, 2011, after the filing of the Information and before his arrest, petitioner filed an Urgent Motion for Re-Determination of Probable Cause10 in the MTC. Interpreting the provisions of the law relied upon by petitioner, the said court denied the motion, holding that R.A. 9225 makes a distinction between those who became foreign citizens during its effectivity, and those who lost their Philippine citizenship before its enactment when the governing law was Commonwealth Act No. 6311 (CA 63). Since the crime for which petitioner was charged was alleged and admitted to have been committed on April 12, 2007 before he had re-acquired his Philippine citizenship, the MTC concluded that petitioner was at that time still a Canadian citizen. Thus, the MTC ordered:chanRoblesvirtualLawlibrary

WHEREFORE, for lack of jurisdiction over the person of the accused, and for lack of merit, the motion is DENIED. SO ORDERED.12 In his motion for reconsideration,13 petitioner questioned the foregoing order denying him relief on the ground of lack of jurisdiction and insisted that the issue raised is purely legal. He argued that since his application had yet to receive final evaluation and action by the DENR Region IV-B office in Manila, it is academic to ask the citizenship of the applicant (petitioner) who had re-acquired Philippine citizenship six months after he applied for lease of public land. The MTC denied the motion for reconsideration.14chanroblesvirtuallawlibrary Dissatisfied, petitioner elevated the case to the RTC via a petition15 for certiorari under Rule 65, alleging grave abuse of discretion on the part of the MTC. He asserted that first, jurisdiction over the person of an accused cannot be a pre-condition for the re-determination of probable cause by the court that issues a warrant of arrest; and second, the March 22, 2011 Order disregarded the legal fiction that once a natural-born Filipino citizen who had been naturalized in another country re-acquires his citizenship under R.A. 9225, his Filipino citizenship is thus deemed not to have been lost on account of said naturalization. In his Comment and Opposition,16 the prosecutor emphasized that the act of falsification was already consummated as petitioner has not yet re-acquired his Philippine citizenship, and his subsequent oath to re-acquire Philippine citizenship will only affect his citizenship status and not his criminal act which was long consummated prior to said oath of allegiance. On October 8, 2011, the RTC issued the assailed Order denying the petition for certiorari after finding no grave abuse of discretion committed by the lower court, thus:chanRoblesvirtualLawlibrary ACCORDINGLY, the petition is hereby DENIED. At any rate petitioner is not left without any remedy or recourse because he can proceed to trial where he can make use of his claim to be a Filipino citizen as his defense to be adjudicated in a full blown trial, and in case of conviction, to appeal such conviction. SO ORDERED.17 Petitioner is now before us arguing that – A.

By supporting the prosecution of the petitioner for falsification, the lower court has disregarded the undisputed fact that petitioner is a natural-born Filipino citizen, and that by re-acquiring the same status under R.A. No. 9225 he was by legal fiction “deemed not to have lost” it at the time of his naturalization in Canada and through the time when he was said to have falsely claimed Philippine citizenship.

B.

By compelling petitioner to first return from his legal residence in Canada and to surrender or allow himself to be arrested under a warrant for his alleged false claim to Philippine citizenship, the lower court has preempted the right of petitioner through his wife and counsel to question the validity of the said warrant of arrest against him before the same is implemented, which is tantamount to a denial of due process.18

In his Comment, the Solicitor General contends that petitioner’s argument regarding the retroactivity of R.A. 9225 is without merit. It is contended that this Court’s rulings in Frivaldo v. Commission on Elections19 and Altarejos v. Commission on Elections20 on the retroactivity of one’s re-acquisition of Philippine citizenship to the date of filing his application therefor cannot be applied to the case of herein petitioner. Even assuming for the sake of argument that such doctrine applies in the present situation, it will still not work for petitioner’s cause for the simple reason that he had not alleged, much less proved, that he had already applied for reacquisition of Philippine citizenship before he made the declaration in the Public Land Application that he is a Filipino. Moreover, it is stressed that in falsification of public document, it is not necessary that the idea of gain or intent to injure a third person be present. As to petitioner’s defense of good faith, such remains to be a defense which may be properly raised and proved in a full-blown trial. On the issue of jurisdiction over the person of accused (petitioner), the Solicitor General opines that in seeking an affirmative relief from the MTC when he filed his Urgent Motion for Re-determination of Probable Cause, petitioner is deemed to have submitted his person to the said court’s jurisdiction by his voluntary appearance. Nonetheless, the RTC correctly ruled that the lower court committed no grave abuse of discretion in denying the petitioner’s motion after a judicious, thorough and personal evaluation of the parties’ arguments contained in their respective pleadings, and the evidence submitted before the court. In sum, the Court is asked to resolve whether (1) petitioner may be indicted for

falsification for representing himself as a Filipino in his Public Land Application despite his subsequent re-acquisition of Philippine citizenship under the provisions of R.A. 9225; and (2) the MTC properly denied petitioner’s motion for re-determination of probable cause on the ground of lack of jurisdiction over the person of the accused (petitioner). R.A. 9225, otherwise known as the “Citizenship Retention and Re-acquisition Act of 2003,” was signed into law by President Gloria Macapagal-Arroyo on August 29, 2003. Sections 2 and 3 of said law read:chanRoblesvirtualLawlibrary SEC. 2. Declaration of Policy.–It is hereby declared the policy of the State that all Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act. SEC. 3. Retention of Philippine Citizenship.–Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have reacquired Philippine citizenship upon taking the following oath of allegiance to the Republic:chanRoblesvirtualLawlibrary “I ______________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.” Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. (Emphasis supplied) While Section 2 declares the general policy that Filipinos who have become citizens of another country shall be deemed “not to have lost their Philippine citizenship,” such is qualified by the phrase “under the conditions of this Act.” Section 3 lays down such conditions for two categories of natural-born Filipinos referred to in the first and second paragraphs. Under the first paragraph are those natural-born Filipinos who have lost their citizenship by naturalization in a foreign country who shall re-acquire their Philippine citizenship upon taking the oath of allegiance to the Republic of the Philippines. The second paragraph covers those natural-born Filipinos who became foreign citizens after R.A. 9225 took effect, who shall retain their Philippine citizenship upon taking the same oath. The taking of oath of allegiance is required for both categories of natural-born Filipino citizens who became citizens of a foreign country, but the terminology used is different, “re-acquired” for the first group, and “retain” for the second group. The law thus makes a distinction between those natural-born Filipinos who became foreign citizens before and after the effectivity of R.A. 9225. Although the heading of Section 3 is “Retention of Philippine Citizenship”, the authors of the law intentionally employed the terms “re-acquire” and “retain” to describe the legal effect of taking the oath of allegiance to the Republic of the Philippines. This is also evident from the title of the law using both re-acquisition and retention. In fine, for those who were naturalized in a foreign country, they shall be deemed to have re-acquired their Philippine citizenship which was lost pursuant to CA 63, under which naturalization in a foreign country is one of the ways by which Philippine citizenship may be lost. As its title declares, R.A. 9225 amends CA 63 by doing away with the provision in the old law which takes away Philippine citizenship from naturalborn Filipinos who become naturalized citizens of other countries and allowing dual citizenship,21 and also provides for the procedure for re-acquiring and retaining Philippine citizenship. In the case of those who became foreign citizens after R.A. 9225 took effect, they shall retain Philippine citizenship despite having acquired foreign citizenship provided they took the oath of allegiance under the new law. Petitioner insists we should not distinguish between re-acquisition and retention in R.A. 9225. He asserts that in criminal cases, that interpretation of the law which favors the accused is preferred because it is consistent with the constitutional presumption of innocence, and in this case it becomes more relevant when a seemingly difficult question of law is expected to have been understood by the accused, who is a nonlawyer, at the time of the commission of the alleged offense. He further cites the letter-reply dated January 31, 201122 of the Bureau of Immigration (BI) to his query, stating that his status as a natural-born Filipino will be governed by Section 2 of R.A. 9225. These

contentions

have

no

merit.

That the law distinguishes between re-acquisition and retention of Philippine citizenship was made clear in the discussion of the Bicameral Conference Committee on the Disagreeing Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on August 18, 2003, where Senator Franklin Drilon was responding to the query of Representative Exequiel Javier:chanRoblesvirtualLawlibrary

REP. JAVIER. I have some questions in Section 3. Here, under Section 3 of the Senate version, “Any provision of law on the contrary notwithstanding, natural-born citizens of the Philippines who, after the effectivity of this Act, shall… and so forth, ano, shall retain their Philippine citizenship. Now in the second paragraph, natural-born citizens who have lost their citizenship by reason of their naturalization after the effectivity of this Act are deemed to have reacquired… THE

CHAIRMAN

(SEN.

DRILON).

Prior

to

the

effectivity.

REP. JAVIER. Well, you have two kinds of natural-born citizens here. Natural-born citizens who acquired foreign citizenship after the effectivity of this act are considered to have retained their citizenship. But natural-born citizens who lost their Filipino citizenship before the effectivity of this act are considered to have reacquired. May I know the distinction? Do you mean to say that natural-born citizens who became, let’s say, American citizens after the effectivity of this act are considered natural-born? Now in the second paragraph are the natural-born citizens who lost their citizenship before the effectivity of this act are no longer natural born citizens because they have just reacquired their citizenship. I just want to know this distinction, Mr. Chairman. THE CHAIRMAN (SEN. DRILON). The title of the Senate version is precisely retention and reacquisition. The reacquisition will apply to those who lost their Philippine citizenship by virtue of Commonwealth Act 63. Upon the effectivity -- assuming that we can agree on this, upon the effectivity of this new measure amending Commonwealth Act 63, the Filipinos who lost their citizenship is deemed to have reacquired their Philippine citizenship upon the effectivity of the act. The second aspect is the retention of Philippine citizenship applying to future instances. So that’s the distinction. REP. JAVIER. Well, I’m just asking this question because we are here making distinctions between natural-born citizens. Because this is very important for certain government positions, ‘no, because natural-born citizens are only qualified for a specific… THE REP.

CHAIRMAN JAVIER.

...positions

(SEN. under

DRILON). the

Constitution

That and

is under

correct. the

law.

THE CHAIRMAN (SEN. DRILON). Yes. We can get to that later on. It’s one of the provisions, yes. But just for purposes of the explanation, Congressman Javier, that is our conceptualization. Reacquired for those who previously lost [Filipino citizenship] by virtue of Commonwealth Act 63, and retention for those in the future. (Emphasis supplied) Considering that petitioner was naturalized as a Canadian citizen prior to the effectivity of R.A. 9225, he belongs to the first category of natural-born Filipinos under the first paragraph of Section 3 who lost Philippine citizenship by naturalization in a foreign country. As the new law allows dual citizenship, he was able to re-acquire his Philippine citizenship by taking the required oath of allegiance. For the purpose of determining the citizenship of petitioner at the time of filing his MLA, it is not necessary to discuss the rulings in Frivaldo and Altarejos on the retroactivity of such reacquisition because R.A. 9225 itself treats those of his category as having already lost Philippine citizenship, in contradistinction to those natural-born Filipinos who became foreign citizens after R.A. 9225 came into force. In other words, Section 2 declaring the policy that considers Filipinos who became foreign citizens as not to have lost their Philippine citizenship, should be read together with Section 3, the second paragraph of which clarifies that such policy governs all cases after the new law’s effectivity. As to the letter-reply of BI, it simply quoted Section 2 of R.A. 9225 without any reference to Section 3 on the particular application of reacquisition and retention to Filipinos who became foreign citizens before and after the effectivity of R.A. 9225. Petitioner’s plea to adopt the interpretation most favorable to the accused is likewise misplaced. Courts adopt an interpretation more favorable to the accused following the time-honored principle that penal statutes are construed strictly against the State and liberally in favor of the accused.23 R.A. 9225, however, is not a penal law. Falsification of documents under paragraph 1, Article 17224 in relation to Article 17125 of the RPC refers to falsification by a private individual, or a public officer or employee who did not take advantage of his official position, of public, private, or commercial documents. The elements of falsification of documents under paragraph 1, Article 172 of the RPC are:chanRoblesvirtualLawlibrary (1) that the offender is a private individual or a public officer or employee who did

not take advantage of his official position; (2) that he committed any of the acts of falsification enumerated in Article 171 of the RPC; and (3) that the falsification was committed in a public, official or commercial document.26 Petitioner made the untruthful statement in the MLA, a public document, that he is a Filipino citizen at the time of the filing of said application, when in fact he was then still a Canadian citizen. Under CA 63, the governing law at the time he was naturalized as Canadian citizen, naturalization in a foreign country was among those ways by which a natural-born citizen loses his Philippine citizenship. While he re-acquired Philippine citizenship under R.A. 9225 six months later, the falsification was already a consummated act, the said law having no retroactive effect insofar as his dual citizenship status is concerned. The MTC therefore did not err in finding probable cause for falsification of public document under Article 172, paragraph 1. The MTC further cited lack of jurisdiction over the person of petitioner accused as ground for denying petitioner’s motion for re-determination of probable cause, as the motion was filed prior to his arrest. However, custody of the law is not required for the adjudication of reliefs other than an application for bail.27 In Miranda v. Tuliao,28 which involved a motion to quash warrant of arrest, this Court discussed the distinction between custody of the law and jurisdiction over the person, and held that jurisdiction over the person of the accused is deemed waived when he files any pleading seeking an affirmative relief, except in cases when he invokes the special jurisdiction of the court by impugning such jurisdiction over his person. Thus:chanRoblesvirtualLawlibrary In arguing, on the other hand, that jurisdiction over their person was already acquired by their filing of the above Urgent Motion, petitioners invoke our pronouncement, through Justice Florenz D. Regalado, in Santiago v. Vasquez:chanRoblesvirtualLawlibrary The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is accomplished either by his pleading to the merits (such as by filing a motion to quash or other pleadings requiring the exercise of the court’s jurisdiction thereover, appearing for arraignment, entering trial) or by filing bail. On the matter of bail, since the same is intended to obtain the provisional liberty of the accused, as a rule the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender.cralawred Our pronouncement in Santiago shows a distinction between custody of the law and jurisdiction over the person. Custody of the law is required before the court can act upon the application for bail, but is not required for the adjudication of other reliefs sought by the defendant where the mere application therefor constitutes a waiver of the defense of lack of jurisdiction over the person of the accused. Custody of the law is accomplished either by arrest or voluntary surrender, while jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance. One can be under the custody of the law but not yet subject to the jurisdiction of the court over his person, such as when a person arrested by virtue of a warrant files a motion before arraignment to quash the warrant. On the other hand, one can be subject to the jurisdiction of the court over his person, and yet not be in the custody of the law, such as when an accused escapes custody after his trial has commenced. Being in the custody of the law signifies restraint on the person, who is thereby deprived of his own will and liberty, binding him to become obedient to the will of the law. Custody of the law is literally custody over the body of the accused. It includes, but is not limited to, detention. x

x

x

x

While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify that, as a general rule, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. As we held in the aforecited case of Santiago, seeking an affirmative relief in court, whether in civil or criminal proceedings, constitutes voluntary appearance. x

x

x

x

To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the person of the accused is deemed waived by the accused when he files any pleading seeking an affirmative relief, except in cases when he invokes the special jurisdiction of the court by impugning such jurisdiction over his person. Therefore, in narrow cases involving special appearances, an accused can invoke the processes of the court even though there is neither jurisdiction over the person nor custody of the law. However, if a person invoking the special jurisdiction of the court applies for bail, he must first submit himself to the custody of the law.29 (Emphasis supplied) Considering that petitioner sought affirmative relief in filing his motion for redetermination of probable cause, the MTC clearly erred in stating that it lacked jurisdiction over his person. Notwithstanding such erroneous ground stated in the MTC’s order, the RTC correctly ruled that no grave abuse of discretion was committed by the MTC in denying the said motion for lack of merit. WHEREFORE, the petition is DENIED. The Order dated October 8, 2011 of the Regional

Trial Court of Pinamalayan, Oriental Mindoro in Civil Case No. SCA-07-11 (Criminal Case No. 2012) is hereby AFFIRMED and UPHELD. With

costs

against

the

SO Velasco, Jr., (Chairperson), concur.cralawlawlibrary

petitioner. ORDERED.

Peralta,

Reyes,

and Perlas-Bernabe,*JJ.,

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189868 December 15, 2009 KABATAAN PARTY-LIST REPRESENTATIVE RAYMOND V. PALATINO, ALVIN A. PETERS, PRESIDENT OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP), MA. CRISTINA ANGELA GUEVARRA, CHAIRPERSON OF THE STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP), VENCER MARI E. CRISOSTOMO, SECRETARY GENERAL OF KABATAAN PARTY-LIST, VIJAE O. ALQUISOLA, PRESIDENT OF THE COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP), DIANNE KRISTEL M. ASUELO, SECRETARY GENERAL OF THE KABATAANG ARTISTA PARA SA TUNAY NA KALAYAAN (KARATULA), KENNETH CARLISLE EARL EUGENIO, ANA KATRINA V. TEJERO, VICTOR LOUIS E. CRISOSTOMO, JACQUELINE ALEXIS S. MERCED, and JADE CHARMANE ROSE J. VALENZUELA, Petitioners, vs. COMMISSION ON ELECTIONS, Respondent.

that Section 29 of Republic Act No. 6646 (RA 6646)4 and Section 28 of Republic Act No. 8436 (RA 8436)5 authorize it to fix other dates for pre-election acts which include voter registration; and that its schedule of pre-election acts shows that the October 31, 2009 deadline of voter registration was impelled by operational and pragmatic considerations, citing Akbayan-Youth v. COMELEC6 wherein the Court denied a similar prayer for an extension of the December 27, 2000 deadline of voter registration for the May 14, 2001 elections. The petition is impressed with merit. The right of suffrage lies at the heart of our constitutional democracy. The right of every Filipino to choose the leaders who will lead the country and participate, to the fullest extent possible, in every national and local election is so zealously guarded by the fundamental law that it devoted an entire article solely therefor: ARTICLE SUFFRAGE

V

DECISION CARPIO MORALES, J.: At the threshold once again is the right of suffrage of the sovereign Filipino people – the foundation of Philippine democracy. As the country prepares to elect its next set of leaders on May 10, 2010, the Court upholds this primordial right. On November 12, 2008, respondent Commission on Elections (COMELEC) issued Resolution No. 85141 which, among other things, set December 2, 2008 to December 15, 2009 as the period of continuing voter registration using the biometrics process in all areas nationwide, except in the Autonomous Region of Muslim Mindanao. Subsequently, the COMELEC issued Resolution No. 85852 on February 12, 2009 adjusting the deadline of voter registration for the May 10, 2010 national and local elections to October 31, 2009, instead of December 15, 2009 as previously fixed by Resolution No. 8514. The intense public clamor for an extension of the October 31, 2009 deadline notwithstanding, the COMELEC stood firm in its decision not to extend it, arguing mainly that it needs ample time to prepare for the automated elections. Via the present Petition for Certiorari and Mandamus filed on October 30, 2009,3 petitioners challenge the validity of COMELEC Resolution No. 8585 and seek a declaration of its nullity. Petitioner Raymond V. Palatino, a youth sectoral representative under the Kabataan Party-list, sues as a member of the House of Representatives and a concerned citizen, while the rest of petitioners sue as concerned citizens. Petitioners contend that the serious questions involved in this case and potential disenfranchisement of millions of Filipino voters justify resort to this Court in the first instance, claiming that based on National Statistics Office (NSO) data, the projected voting population for the May 10, 2010 elections is 3,758,964 for the age group 18-19 and 8,756,981 for the age group 20-24, or a total of 12,515,945. Petitioners further contend that COMELEC Resolution No. 8585 is an unconstitutional encroachment on the legislative power of Congress as it amends the system of continuing voter registration under Section 8 of Republic Act No. 8189 (RA 8189), otherwise known as The Voter’s Registration Act of 1996, reading: Section 8. System of Continuing Registration of Voters. The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. They thus pray that COMELEC Resolution No. 8585 be declared null and void, and that the COMELEC be accordingly required to extend the voter registration until January 9, 2010 which is the day before the 120-day prohibitive period starting on January 10, 2010. The COMELEC maintains in its Comment filed on December 7, 2009 that, among other things, the Constitution and the Omnibus Election Code confer upon it the power to promulgate rules and regulations in order to ensure free, orderly and honest elections;

SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage. SECTION 2. The Congress shall provide a system of securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot. Preserving the sanctity of the right of suffrage ensures that the State derives its power from the consent of the governed. The paramount importance of this right is also a function of the State policy of people empowerment articulated in the constitutional declaration that sovereignty resides in the people and all government authority emanates from them,7 bolstered by the recognition of the vital role of the youth in nation-building and directive to the State to encourage their involvement in public and civic affairs.8 It is against this backdrop that Congress mandated a system of continuing voter registration in Section 8 of RA 8189 which provides: Section 8. System of Continuing Registration of Voters. The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. (emphasis and underscoring supplied) The clear text of the law thus decrees that voters be allowed to register daily during regular offices hours, exceptduring the period starting 120 days before a regular election and 90 days before a special election. By the above provision, Congress itself has determined that the period of 120 days before a regular election and 90 days before a special election is enough time for the COMELEC to make ALL the necessary preparations with respect to the coming elections including: (1) completion of project precincts, which is necessary for the proper allocation of official ballots, election returns and other election forms and paraphernalia; (2) constitution of the Board of Election Inspectors, including the determination of the precincts to which they shall be assigned; (3) finalizing the Computerized Voters List; (4) supervision of the campaign period; and (5) preparation, bidding, printing and distribution of Voter’s Information Sheet. Such determination of Congress is well within the ambit of its legislative power, which this Court is bound to respect. And the COMELEC’s rule-making power should be exercised in accordance with the prevailing law.9 Respecting the authority of the COMELEC under RA 6646 and RA 8436 to fix other dates for pre-election acts, the same is not in conflict with the mandate of continuing voter registration under RA 8189. This Court’s primary duty is to harmonize laws rather than consider one as repealed by the other. The presumption is against inconsistency

or repugnance and, accordingly, against implied repeal. For Congress is presumed to know the existing laws on the subject and not to enact inconsistent or conflicting statutes.10 Both R.A. No. 6646, Section 29 and R.A. No. 8436, Section 28 grant the COMELEC the power to fix other periods and dates for pre-election activities only if the same cannot be reasonably held within the period provided by law. This grant of power, however, is for the purpose of enabling the people to exercise the right of suffrage – the common underlying policy of RA 8189, RA 6646 and RA 8436. In the present case, the Court finds no ground to hold that the mandate of continuing voter registration cannot be reasonably held within the period provided by RA 8189, Sec. 8 – daily during office hours, except during the period starting 120 days before the May 10, 2010 regular elections. There is thus no occasion for the COMELEC to exercise its power to fix other dates or deadlines therefor. The present case differs significantly from Akbayan-Youth v. COMELEC.11 In said case, the Court held that the COMELEC did not commit abuse of discretion in denying the request of the therein petitioners for an extension of the December 27, 2000 deadline of voter registration for the May 14, 2001 elections. For the therein petitioners filed their petition with the Court within the 120-day prohibitive period for the conduct of voter registration under Section 8 of RA 8189, and sought the conduct of a two-day registration on February 17 and 18, 2001, clearly within the 120-day prohibitive period. The Court in fact suggested in Akbayan-Youth that the therein petitioners could have, but had not, registered during the period between the December 27, 2000 deadline set by the COMELEC and before the start of the 120-day prohibitive period prior to the election date or January 13, 2001, thus: [T]here is no allegation in the two consolidated petitions and the records are bereft of any showing that anyone of herein petitioners has filed an application to be registered as a voter which was denied by the COMELEC nor filed a complaint before the respondent COMELEC alleging that he or she proceeded to the Office of the Election Officer to register between the period starting from December 28, 2000 to January 13, 2001, and that he or she was disallowed or barred by respondent COMELEC from filing his application for registration. While it may be true that respondent COMELEC set the registration deadline on December 27, 2000, this Court is of the firm view that petitioners were not totally denied the opportunity to avail of the continuing registration under R.A. 8189.12(emphasis and underscoring supplied) The clear import of the Court’s pronouncement in Akbayan-Youth is that had the therein petitioners filed their petition – and sought an extension date that was – before the 120-day prohibitive period, their prayer would have been granted pursuant to the mandate of RA 8189. In the present case, as reflected earlier, both the dates of filing of the petition (October 30, 2009) and the extension sought (until January 9, 2010) are prior to the 120-day prohibitive period. The Court, therefore, finds no legal impediment to the extension prayed for. WHEREFORE, the petition is GRANTED. COMELEC Resolution No. 8585 is declared null and void insofar as it set the deadline of voter registration for the May 10, 2010 elections on October 31, 2009. The COMELEC is directed to proceed with dispatch in reopening the registration of voters and holding the same until January 9, 2010. This Decision is IMMEDIATELY EXECUTORY. SO ORDERED. CONCHITA Associate Justice

CARPIO

MORALES

EN BANC G.R. No. 221318, December 16, 2015 KABATAAN PARTY-LIST, REPRESENTED BY REPRESENTATIVE JAMES MARK TERRY L. RIDON AND MARJOHARA S. TUCAY; SARAH JANE I. ELAGO, PRESIDENT OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES; VENCER MARI E. CRISOSTOMO, CHAIRPERSON OF THE ANAKBAYAN; MARC LINO J. ABILA, NATIONAL PRESIDENT OF THE COLLEGE EDITORS GUILD OF THE PHILIPPINES; EINSTEIN Z. RECEDES, DEPUTY SECRETARY- GENERAL OF ANAKBAYAN; CHARISSE BERNADINE I. BAÑEZ, CHAIRPERSON OF THE LEAGUE OF FILIPINO STUDENTS; ARLENE CLARISSE Y. JULVE, MEMBER OF ALYANSA NG MGA GRUPONG HALIGI NG AGHAM AT TEKNOLOHIYA PARA SA MAMAMAYAN (AGHAM); AND SINING MARIA ROSA L. MARFORI, Petitioners, v. COMMISSION ELECTIONS, ON, Respondent. DECISION PERLAS-BERNABE, J.: Rights beget responsibilities; progress begets change.

Before the Court is a petition for certiorari and prohibition1 filed by herein petitioners Kabataan Party-List, represented by Representative James Mark Terry L. Ridon and National President Marjohara S. Tucay; Sarah Jane I. Elago, President of the National Union of Students of the Philippines; Veneer Mari E. Crisostomo and Einstein Z. Recedes, Chairperson and Deputy Secretary-General of Anakbayan, respectively; Marc Lino J. Abila, National President of the College Editors Guild of the Philippines; Charisse Bernadine I. Bañez, Chairperson of the League of Filipino Students; Arlene Clarisse Y. Julve, member of Alyansa ng mga Grupong Haligi ngAgham at Teknolohiya para sa Mamamayan (AGHAM); and Sining Maria Rosa L. Marfori (petitioners) assailing the constitutionality of Republic Act No. (RA) 10367, entitled "An Act Providing for Mandatory Biometrics Voter Registration,"2 as well as respondent Commission on Elections (COMELEC) Resolution Nos. 9721,3 9863,4 and 10013,5 all related thereto. The Facts On February 15, 2013, President Benigno S. Aquino III signed into law RA 10367, which is a consolidation of House Bill No. 3469 and Senate Bill No. 1030, passed by the House of Representatives and the Senate on December 11, 2012 and December 12, 2012,6 respectively. Essentially, RA 10367 mandates the COMELEC to implement a mandatory biometrics registration system for new voters7 in order to establish a clean, complete, permanent, and updated list of voters through the adoption of biometric technology.8RA 10367 was duly published on February 22, 2013,9 and took effect fifteen (15) days after.10 RA 10367 likewise directs that "[r]egistered voters whose biometrics have not been captured shall submit themselves for validation."11 "Voters who fail to submit for validation on or before the last day of filing of application for registration for purposes of the May 2016 [E]lections shall be deactivated x x x."12 Nonetheless, voters may have their records reactivated after the May 2016 Elections, provided that they comply with the procedure found in Section 2813 of RA 8189,14 also known as "The Voter's Registration Act of 1996."15 On June 26, 2013, the COMELEC issued Resolution No. 972116 which serves as the implementing rules and regulations of RA 10367, thus, prescribing the procedure for validation,17 deactivation,18 and reactivation of voters' registration records (VRRs).19 Among others, the said Resolution provides that: (a) "[t]he registration records of voters without biometrics data who failed to submit for validation on or before the last day of filing of applications for registration for the purpose of the May 9, 2016 National and Local Elections shall be deactivated in the last [Election Registration Board (ERB)] hearing to be conducted prior to said elections";20 (b) "[t]he following registered voters shall have their biometrics data validated: [(1)] Those who do not have BIOMETRICS data appearing in the Voter['s] Registration System (VRS); and [(2)] Those who have incomplete BIOMETRICS dataappearing in the VRS";21 (c) "[d]eactivated voters shall not be allowed to vote";22 and (d) "[d]eactivation x x x shall comply with the requirements on posting, ERB hearing and service of individual notices to the deactivated voters."23 Resolution No. 9721 further states that, as of the last day of registration and validation for the 2013 Elections on October 31, 2012, a total of 9,018,256 registered voters were without biometrics data.24 Accordingly, all Election Officers (EOs) were directed to "conduct [an] information campaign on the conduct of validation."25cralawred

On July 1, 2013, the COMELEC, pursuant to the aforesaid Resolution, commenced the mandatory biometric system of registration. To make biometric registration convenient and accessible to the voting public, aside from the COMELEC offices in every local government unit, it likewise established satellite registration offices in barangays and mails.26 On April 1, 2014, the COMELEC issued Resolution No. 986327 which amended certain portions28 of Resolution No. 985329 dated February 19, 2014, by stating that ERBs shall deactivate the VRRs of those who "failed to submit for validation despite notice on or before October 31, 2015," and that the "[d]eactivation for cases falling under this ground shall be made during the November 16, 2015 Board hearing."30 A month later, or in May 2014, the COMELEC launched the NoBio-NoBoto public information campaign which ran concurrently with the period of continuing registration.31 On November 3, 2015, the COMELEC issued Resolution No. 1001332 which provides for the "procedures in the deactivation of [VRRs] who do not have biometrics data in the [VRS] after the October 31, 2015 deadline of registration and validation."33 Among others, the said Resolution directed the EOs to: (a) "[p]ost the lists of voters without biometrics data in the bulletin boards of the City/Municipal hall, Office of the Election Officer and in the barangay hall along with the notice of ERB hearing;" and (b) "[s]end individual notices to the affected voters included in the generated list of voters without biometrics data."34 It also provides that "[a]ny opposition/objection to the deactivation of records shall be filed not later than November 9, 2015 in accordance with the period prescribed in Section 4,35 [Chapter I,] Resolution No. 9853."36 During the ERB hearing, which proceedings are summary in nature,37 "the ERBs shall, based dn the list of voters without biometrics data, order the deactivation of registration records on the ground of 'failure to validate.'"38 Thereafter, EOs were required to "[s]end individual notices to the deactivated voters within five (5) days from the last day of ERB hearing."39 Moreover, Resolution No. 10013 clarified that the "[Registration records of voters with incomplete biometrics data and those corrupted data (biometrics) in the database shall not be deactivated and be allowed to vote in the May 9, 2016 Synchronized National, Local and [Autonomous Region on Muslim Mindanao (ARMM)] Regional Elections."40 On November 25, 2015, herein petitioners filed the instant petition with application for temporary restraining order (TRO) and/or writ of preliminary mandatory injunction (WPI) assailing the constitutionality of the biometrics validation requirement imposed under RA 10367, as well as COMELEC Resolution Nos. 9721, 9863, and 10013, all related thereto. They contend that: (a) biometrics validation rises to the level of an additional, substantial qualification where there is penalty of deactivation;41 (b) biometrics deactivation is not the disqualification by law contemplated by the 1987 Constitution;42 (c) biometrics validation gravely violates the Constitution, considering that, applying the strict scrutiny test, it is not poised with a compelling reason for state regulation and hence, an unreasonable deprivation of the right to suffrage;43 (d) voters to be deactivated are not afforded due process;44 and (e) poor experience with biometrics should serve as warning against exacting adherence to the system.45 Albeit already subject of a prior petition46 filed before this Court, petitioners also raise herein the argument that deactivation by November 16, 2015 would result in the premature termination of the registration period contrary to Section 847 of RA 8189.48 Ultimately, petitioners pray that this Court declare RA 10367, as well as COMELEC Resolution Nos. 9721, 9863, and 10013, unconstitutional and that the COMELEC be commanded to desist from deactivating registered voters without biometric information, to reinstate voters who are compliant with the requisites of RA 8189 but have already been delisted, and to extend the system of continuing registration and capture of biometric information of voters until January 8, 2016.49 On December 1, 2015, the Court required the COMELEC to file its comment to the petition. Meanwhile, it issued a TRO requiring the COMELEC to desist from deactivating the registration records of voters without biometric information, pending resolution of the case at hand.50 On December 7, 2015, COMELEC Chairman Juan Andres D. Bautista, through a letter51 addressed to the Court En Banc, urgently appealed for the immediate lifting of the above-mentioned TRO, stating that the COMELEC is set to finalize the Project of Precincts (POP) on December 15, 2015, and that the TRO issued in this case has the effect of including the 2.4 Million deactivated voters in the list of voters, which, in turn, would require revisions to the POP and consequently, adversely affect the timelines of all other interrelated preparatory activities to the prejudice of the successful implementation of the Automated Election System (AES) for the 2016 Elections.52 On December 11, 2015, the COMELEC, through the Office of the Solicitor General, filed its comment53 to the instant petition. On even date, petitioners filed a manifestation54 asking the Court to continue the TRO against the deactivation of voters without biometric information.55

With no further pleadings required of the parties, the case was submitted for resolution. The Issue Before the Court The core issue in this case is whether or not RA 10367, as well as COMELEC Resolution Nos. 9721, 9863, and 10013, all related thereto, are unconstitutional. The Ruling of the Court The petition is bereft of merit. I. At the outset, the Court passes upon the procedural objections raised in this case. In particular, the COMELEC claims that petitioners: (a) failed to implead the Congress, the Office of the President, and the ERB which it purports are indispensable parties to the case;56 (b) did not have the legal standing to institute the instant petition;57 and (c) erroneously availed of certiorari and prohibition as a mode of questioning the constitutionality of RA 10367 and the assailed COMELEC Resolutions.58 The

submissions

do

not

hold.

Recognizing that the petition is hinged on an important constitutional issue pertaining to the right of suffrage, the Court views the matter as one of transcendental public importance and of compelling significance. Consequently, it deems it proper to brush aside the foregoing procedural barriers and instead, resolve the case on its merits. As resonated in the case of Pabillo v. COMELEC,59 citing Capalla v. COMELEC60 and Guingona, Jr. v. COMELEC:61 There can be no doubt that the coming 10 May 2010 [in this case, the May 2016] elections is a matter of great public concern. On election day, the country's registered voters will come out to exercise the sacred right of suffrage. Not only is it an exercise that ensures the preservation of our democracy, the coming elections also embodies our people's last ounce of hope for a better future. It is the final opportunity, patiently awaited by our people, for the peaceful transition of power to the next chosen leaders of our country. If there is anything capable of directly affecting the lives of ordinary Filipinos so as to come within the ambit of a public concern, it is the coming elections, [x x x.] Thus, in view of the compelling significance and transcending public importance of the issues raised by petitioners, the technicalities raised by respondents should not be allowed to stand in the way, if the ends of justice would not be subserved by a rigid adherence to the rules of procedure. (Emphasis and underscoring supplied) Furthermore, the issue on whether or not the policy on biometrics validation, as provided under RA 10367 and fleshed out in the assailed COMELEC Resolutions, should be upheld is one that demands immediate adjudication in view of the critical preparatory activities that are currently being undertaken by the COMELEC with regard to the impending May 2016 Elections. Thus, it would best subserve the ends of justice to settle this controversy not only in order to enlighten the citizenry, but also so as not to stymy the operations of a co-constitutional body. As pronounced in Roque, Jr. v. COMELEC:62 [T]he bottom line is that the Court may except a particular case from the operations of its rules when the demands of justice so require. Put a bit differently, rules of procedure are merely tools designed to facilitate the attainment of justice. Accordingly, technicalities and procedural barriers should not be allowed to stand in the way, if the ends of justice would not be subserved by a rigid adherence to the rules of procedure.63ChanRoblesVirtualawlibrary That being said, the Court now proceeds to resolve the substantive issues in this case. II. Essentially, the present petition is a constitutional challenge against the biometrics validation requirement imposed under RA 10367, including COMELEC Resolution Nos. 9721, 9863, and 10013. As non-compliance with the same results in the penalty of deactivation, petitioners posit that it has risen to the level of an unconstitutional substantive requirement in the exercise of the right of suffrage.64 They submit that the statutory requirement of biometric validation is no different from the unconstitutional requirement of literacy and property because mere non-validation already absolutely curtails the exercise of the right of suffrage through deactivation.65 Further, they advance the argument that deactivation is not the disqualification by law contemplated as a valid limitation to the exercise of suffrage under the 1987 Constitution.66 The

contestation

is

untenable.

As early as the 1936 case of The People of the Philippine Islands v. Corral,67 it has been

recognized that "[t]he right to vote is not a natural right but is a right created by law. Suffrage is a privilege granted by the State to such persons or classes as are most likely to exercise it for the public good. In the early stages of the evolution of the representative system of government, the exercise of the right of suffrage was limited to a small portion of the inhabitants. But with the spread of democratic ideas, the enjoyment of the franchise in the modern states has come to embrace the mass of the audit classes of persons are excluded from the franchise."68 Section 1, Article V of the 1987 Constitution delineates the current parameters for the exercise of suffrage: Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. Dissecting the provision, one must meet the following qualifications in order to exercise the right of suffrage: first, he must be a Filipino citizen; second, he must not be disqualified by law; and third, he must have resided in the Philippines for at least one (1) year and in the place wherein he proposes to vote for at least six (6) months immediately preceding the election. The second item more prominently reflects the franchised nature of the right of suffrage. The State may therefore regulate said right by imposing statutory disqualifications, with the restriction, however, that the same do not amount to, as per the second sentence of the provision, a "literacy, property or other substantive requirement." Based on its genesis, it may be gleaned that the limitation is geared towards the elimination of irrelevant standards that are purely based on socioeconomic considerations that have no bearing on the right of a citizen to intelligently cast his vote and to further the public good. To contextualize, the first Philippine Election Law, Act No. 1582, which took effect on January 15, 1907, mandated that only men who were at least twenty-three (23) years old and "comprised within one of the following three classes" were allowed to vote: (a) those who prior to the 13th of August, 1898, held the office of municipal captain, governadorcillo, alcalde, lieutenant, cabeza de barangay, or member of any ayuntamiento; (b) those who own real property to the value of P500.00, or who annually pay P30.00 or more of the established taxes; and (c) those, who speak, read, and write English or Spanish. When the 1935 Constitution was adopted, the minimum voting age was lowered to twenty-one (21) and the foregoing class qualification and property requirements were removed.69 However, the literacy requirement was retained and only men who were able to read and write were given the right to vote.70It also made women's right to vote dependent on a plebiscite held for such purpose.71 During the 1971 Constitutional Convention, the delegates decided to remove the literacy and property requirements to broaden the political base and discontinue the exclusion of millions of citizens from the political systems:72 Sponsorship Speech of Delegate Manglapus DELEGATE MANGLAPUS: Mr. President, the draft proposal, the subject matter of Report No. 11 contains amendments that are designed to improve Article V on suffrage and to broaden the electoral base of our country. The three main points that are taken up in this draft which will be developed in the sponsorship speeches that will follow might need explanatory remarks, x x x. x x x x (2) The present requirement, reading and writing, is eliminated and instead a provision is introduced which says, "No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage;" xxxx The draft before us is in keeping with the trend towards the broadening of the electoral base already begun with the lowering of the voting age to 18, and it is in keeping further with the Committee's desire to discontinue the alienation and exclusion of millions of citizens from the political system and from participation in the political life of the country. The requirement of literacy for voting is eliminated for it is noted that there are very few countries left in the world where literacy remains a condition for voting. There is no Southeast Asian country that imposes this requirement. The United States Supreme Court only a few months ago declared unconstitutional any state law that would continue to impose this requirement for voting. x

x

x

x

It is to be noted that all those who testified before the Committee favoured the elimination of the literacy requirement. It must be stressed that those witnesses

represented Sponsorship

all

levels Speech

of of

society Delegate

x

x

x. Ordoñez

x x x in the process, as we evolve, many and more of our people were left to the sidelines because they could no longer participate in the process of government simply because their ability to read and write had become inadequate. This, however, did not mean that they were no longer responsive to the demands of the times, that they were unsensible to what was happening among them. And so in the process as years went on, conscious efforts were made to liberate, to free these persons who were formerly entitled in the course of election by means of whittling away the requirements for the exercise of the right to vote. First of all, was the property requirement. There were times in the English constitutional history that it was common to say as an answer to a question, "Who are entitled to vote?" that the following cannot vote - - criminals, paupers, members of the House of Lords. They were landed together at the same figurative category. Eventually, with the wisdom of the times, property requirement was eliminated but the last remaining vestige which bound the members of the community to ignorance, which was the persistence of this requirement of literacy remained. And this is again preserved in our Constitution, in our Election Code, which provides that those who cannot prepare their ballots themselves shall not be qualified to vote. x

x

x

x

Unless you remove this literacy test, the cultural minorities, the underprivileged, the urban guerrillas will forever be outcasts of our society, irresponsive of what is happening. And if this condition were to continue, my friends, we cannot fully claim that we have representative democracy. Let us reverse the cycle. Let us eliminate the social imbalance by granting to these persons who are very responsible the right to participate in the choice of the persons who are to make their laws for them. (Emphases supplied) As clarified on interpellation, the phrase "other substantive requirement" carries the same tack as the other standards alienating particular classes based on socio-economic considerations irrelevant to suffrage, such as the payment of taxes. Moreover, as particularly noted and as will be later elaborated on, the phrase did not contemplate any restriction on procedural requirements, such as that of registration: DELEGATE DE LOS REYES: On page 2, Line 3, the following appears: "For other substantive requirement, no literacy[,] property, or other substantive requirement shall be imposed on the exercise of suffrage." just what is contemplated in the phrase, "substantive requirement?" DELEGATE OCCEÑA: I can answer that, but it belongs to the sphere of someone else in the Committee. We use this term as distinguished from procedural requirements. For instance, the law cannot come in and say that those who should be allowed to vote should have paid certain taxes. That would be a substantial requirement in addition to what is provided for in the Constitution. But the law can step in as far as certain procedural requirements are concerned like requiring registration, and also step in as far as these classifications are concerned.73 (Emphases supplied) As it finally turned out, the imposition of literacy, property, or other substantive requirement was proscribed and the following provision on suffrage was adopted74 in the 1973 Constitution: Section 1. Suffrage shall be exercised by citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. The Batasang Pambansa shall provide a system for the purpose of securing the secrecy and sanctity of the vote. (Emphasis supplied) After deliberating on and eventually, striking down a proposal to exclude literacy requirements from the limitation,75 the exact provision prohibiting the imposition of "literacy, property, or other substantive requirement[s]" in the 1973 Constitution was fully adopted in the 1987 Constitution. Along the contours of this limitation then, Congress, pursuant to Section 118 of Batas Pambansa Bilang 881, or the Omnibus Election Code, among others, imposed the following legal disqualifications: Section 118. Disqualifications. - The following shall be disqualified from voting: (a) Any person who has been sentenced by final judgment to suffer imprisonment for not less than one year, such disability not having been removed by plenary pardon or granted amnesty: Provided, however, That any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five years after service of sentence. (b) Any person who has been adjudged by final judgment by competent court or tribunal of having committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the anti-subversion and firearms

laws, or any crime against national security, unless restored to his full civil and political rights in accordance with law: Provided, That he shall regain his right to vote automatically upon expiration of five years after service of sentence. (c) Insane or incompetent persons as declared by competent authority. A "qualification" is loosely defined as "the possession of qualities, properties (such as fitness or capacity) inherently or legally necessary to make one eligible for a position or office, or to perform a public duty or function."76 Properly speaking, the concept of a "qualification", at least insofar as the discourse on suffrage is concerned, should be distinguished from the concept of "registration", which is jurisprudentially regarded as only the means by which a person's qualifications to vote is determined. In Yra v. Abaño,77 citing Meffert v. Brown,78 it was stated that "[t]he act of registering is only one step towards voting, and it is not one of the elements that makes the citizen a qualified voter [and] one may be a qualified voter without exercising the right to vote."79 In said case, this Court definitively characterized registration as a form of regulation and not as a qualification for the right of suffrage: Registration regulates the exercise of the right of suffrage. It is not a qualification for such right.80 (Emphasis supplied) As a form of regulation, compliance with the registration procedure is dutifully enjoined. Section 115 of the Omnibus Election Code provides: Section 115. Necessity of Registration. - In order that a qualified elector may vote in any election, plebiscite or referendum, he must be registered in the permanent list of voters for the city or municipality in which he resides. (Emphasis supplied) Thus, although one is deemed to be a "qualified elector," he must nonetheless still comply with the registration procedure in order to vote. As the deliberations on the 1973 Constitution made clear, registration is a mere procedural requirement which does not fall under the limitation that "[n]o literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage." This was echoed in AKBAYAN-Youth v. COMELEC81(AKBAYAN-Youth), wherein the Court pronounced that the process of registration is a procedural limitation on the right to vote. Albeit procedural, the right of a citizen to vote nevertheless remains conditioned upon it: Needless to say, the exercise of the right of suffrage, as in the enjoyment of all other rights, is subject to existing substantive and procedural requirements embodied in our Constitution, statute books and other repositories of law. Thus, as to the substantive aspect, Section 1, Article V of the Constitution provides:chanRoblesvirtualLawlibrary x

x

x

x

As to the procedural limitation, the right of a citizen to vote is necessarily conditioned upon certain procedural requirements he must undergo: among others, the process of registration. Specifically, a citizen in order to be qualified to exercise his right to vote, in addition to the minimum requirements set by the fundamental charter, is obliged by law to register, at present, under the provisions of Republic Act No. 8189, otherwise known as the Voters Registration Act of 1996. 82 (Emphasis and underscoring supplied) RA 8189 primarily governs the process of registration. It defines "registration" as "the act of accomplishing and filing of a sworn application for registration by a qualified voter before the election officer of the city or municipality wherein he resides and including the same in the book of registered voters upon approval by the [ERB]."83 As stated in Section 2 thereof, RA 8189 was passed in order "to systematize the present method of registration in order to establish a clean, complete, permanent and updated list of voters." To complement RA 8189 in light of the advances in modern technology, RA 10367, or the assailed Biometrics Law, was signed into law in February 2013. It built on the policy considerations behind RA 8189 as it institutionalized biometrics validation as part of the registration process: Section 1. Declaration of Policy. - It is the policy of the State to establish a clean, complete, permanent and updated list of voters through the adoption of biometric technology. "Biometrics refers to a quantitative analysis that provides a positive identification of an individual such as voice, photograph, fingerprint, signature, iris, and/or such other identifiable features."84 Sections 3 and 10 of RA 10367 respectively require registered and new voters to submit themselves for biometrics validation: Section 3. Who Shall Submit for Validation. - Registered voters whose biometrics have not been captured shall submit themselves for validation. Section 10. Mandatory Biometrics Registration. - The Commission shall implement a mandatory biometrics registration system for new voters. Under Section 2 (d) of RA 10367, "validation" is defined as "the process of taking the biometrics of registered voters whose biometrics have not yet been captured."

The consequence of non-compliance is "deactivation" which "refers to the removal of the registration record of the registered voter from the corresponding precinct book of voters for failure to comply with the validation process as required by [RA 10367]."85 Section 7 states: Section 7. Deactivation. - Voters who fail to submit for validation on or before the last day of filing of application for registration for purposes of the May 2016 elections shall be deactivated pursuant to this Act. (Emphases supplied) Notably, the penalty of deactivation, as well as the requirement of validation, neutrally applies to all voters. Thus, petitioners' argument that the law creates artificial class of voters86 is more imagined than real. There is no favor accorded to an "obedient group." If anything, non-compliance by the "disobedient" only rightfully results into prescribed consequences. Surely, this is beyond the intended mantle of the equal protection of the laws, which only works "against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality."87

should not be denigrated to the lowly stature of a mere statutory requirement. Proceeding from the significance of registration as a necessary requisite to the right to vote, the State undoubtedly, in the exercise of its inherent police power, may then enact laws to safeguard and regulate the act of voter's registration for the ultimate purpose of conducting honest, orderly and peaceful election, to the incidental yet generally important end, that even pre-election activities could be performed by the duly constituted authorities in a realistic and orderly manner - one which is not indifferent, and so far removed from the pressing order of the day and the prevalent circumstances of the times.88 (Emphasis and underscoring supplied) Thus, unless it is shown that a registration requirement rises to the level of a literacy, property or other substantive requirement as contemplated by the Framers of the Constitution - that is, one which propagates a socio-economic standard which is bereft of any rational basis to a person's ability to intelligently cast his vote and to further the public good - the same cannot be struck down as unconstitutional, as in this case. III.

It should also be pointed out that deactivation is not novel to RA 10367. RA 8189 already provides for certain grounds for deactivation, of which not only the disqualifications under the Constitution or the Omnibus Election are listed. Section 27. Deactivation of Registration. The board shall deactivate the registration and remove the registration records of the following persons from the corresponding precinct book of voters and place the same, properly marked and dated in indelible ink, in the inactive file after entering the cause or causes of deactivation:chanRoblesvirtualLawlibrary

For another, petitioners assert that biometrics validation gravely violates the Constitution, considering that, applying the strict scrutiny test, it is not poised with a compelling reason for state regulation and hence, an unreasonable deprivation of the right to suffrage.89 They cite the case of White Light Corp. v. City of Manila90 (White Light), wherein the Court stated that the scope of the strict scrutiny test covers the protection of the right of suffrage.91

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

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

b) Any person who has been adjudged by final judgment by a competent court or tribunal of having caused/committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the anti-subversion and firearms laws, or any crime against national security, unless restored to his full civil and political rights in accordance with law; Provided, That he shall regain his right to vote automatically upon expiration of five (5) years after service of sentence; c) Any person declared by competent authority to be insane or incompetent unless such disqualification has been subsequently removed by a declaration of a proper authority that such person is no longer insane or incompetent; d) Any person who did not vote in the two (2) successive preceding regular elections as shown by their voting records. For this purpose, regular elections do not include the Sangguniang Kabataan (SK) elections; e) Any person whose registration has been ordered excluded by the Court; and f)

Any

person

who

has

lost

his

Filipino

citizenship.

For this purpose, the clerks of court for the Municipal/Municipal ( Circuit/Metropolitan/Regional Trial Courts and the Sandiganbayan shall furnish the Election Officer of the city or municipality concerned at the end of each month a certified list of persons who are disqualified under paragraph (a) hereof, with their addresses. The Commission may request a certified list of persons who have lost their Filipino Citizenship or declared as insane or incompetent with their addresses from other government agencies. The Election Officer shall post in the bulletin board of his office a certified list of those persons whose registration were deactivated and the reasons therefor, and furnish copies thereof to the local heads of political parties, the national central file, provincial file, and the voter concerned. With these considerations in mind, petitioners' claim that biometrics validation imposed under RA 10367, and implemented under COMELEC Resolution Nos. 9721, 9863, and 10013, must perforce fail. To reiterate, this requirement is not a "qualification" to the exercise of the right of suffrage, but a mere aspect of the registration procedure, of which the State has the right to reasonably regulate. It was institutionalized conformant to the limitations of the 1987 Constitution and is a mere complement to the existing Voter's Registration Act of 1996. Petitioners would do well to be reminded of this Court's pronouncement in AKBAYAN-Youth, wherein it was held that: [T]he act of registration is an indispensable precondition to the right of suffrage. For registration is part and parcel of the right to vote and an indispensable element in the election process. Thus, contrary to petitioners' argument, registration cannot and

Contrary to petitioners' assertion, the regulation passes the strict scrutiny test.

Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest,94 and the burden befalls upon the State to prove the same.95 In this case, respondents have shown that the biometrics validation requirement under RA 10367 advances a compelling state interest. It was precisely designed to facilitate the conduct of orderly, honest, and credible elections by containing - if not eliminating, the perennial problem of having flying voters, as well as dead and multiple registrants. According to the sponsorship speech of Senator Aquilino L. Pimentel III, the objective of the law was to cleanse the national voter registry so as to eliminate electoral fraud and ensure that the results of the elections were truly reflective of the genuine will of the people.96 The foregoing consideration is unquestionably a compelling state interest. Also, it was shown that the regulation is the least restrictive means for achieving the above-said interest. Section 697 of Resolution No. 9721 sets the procedure for biometrics validation, whereby the registered voter is only required to: (a) personally appear before the Office of the Election Officer; (b) present a competent evidence of identity; and (c) have his photo, signature, and fingerprints recorded. It is, in effect, a manner of updating one's registration for those already registered under RA 8189, or a first-time registration for new registrants. The re-registration process is amply justified by the fact that the government is adopting a novel technology like biometrics in order to address the bane of electoral fraud that has enduringly plagued the electoral exercises in this country. While registrants may be inconvenienced by waiting in long lines or by not being accommodated on certain days due to heavy volume of work, these are typical burdens of voting that are remedied by bureaucratic improvements to be implemented by the COMELEC as an administrative institution. By and large, the COMELEC has not turned a blind eye to these realities. It has tried to account for the exigencies by holding continuous registration as early as May 6, 2014 until October 31, 2015, or for over a period of 18 months. To make the validation process as convenient as possible, the COMELEC even went to the extent of setting up off-site and satellite biometrics registration in shopping malls and conducted the same on Sundays.98Moreover, it deserves mentioning that RA 10367 and Resolution No. 9721 did not mandate registered voters to submit themselves to validation every time there is an election. In fact, it only required the voter to undergo the validation process one (1) time, which shall remain effective in succeeding elections, provided that he remains an active voter. To add, the failure to validate did not preclude deactivated voters from exercising their right to vote in the succeeding elections. To rectify such status, they could still apply for reactivation99 following the procedure laid down in Section 28100 of RA 8189. That being said, the assailed regulation on the right to suffrage was sufficiently

justified as it was indeed narrowly tailored to achieve the compelling state interest of establishing a clean, complete, permanent and updated list of voters, and was demonstrably the least restrictive means in promoting that interest.101 IV. Petitioners further aver that RA 10367 and the COMELEC Resolution Nos. 9721, 9863, and 10013 violate the tenets of procedural due process because of the short periods of time between hearings and notice, and the summary nature of the deactivation proceedings.102 Petitioners

are

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

mistaken. VI.

At the outset, it should be pointed out that the COMELEC, through Resolution No. 10013, had directed EOs to: (a) "[p]ost the lists of voters without biometrics data in the bulletin boards of the City/Municipal hall, Office of the Election Officer and in the barangay hall along with the notice of ERB hearing;" and (b) [s]end individual notices to the affected voters included in the generated list of voters without biometrics data.103 The same Resolution also accords concerned individuals the opportunity to file their opposition/objection to the deactivation of VRRs not later than November 9, 2015 in accordance with the period prescribed in Section 4,104 Chapter I, Resolution No. 9853. Meanwhile, Resolution Nos. 9721 and 9863 respectively state that "[d]eactivation x x x shall comply with the requirements on posting, ERB hearing and service of individual notices to the deactivated voters,"105 and that the "Reactivation for cases falling under this ground shall be made during the November 16, 2015 Board hearing."106 While the proceedings are summary in nature, the urgency of finalizing the voters' list for the upcoming May 2016 Elections calls for swift and immediate action on the deactivation of VRRs of voters who fail to comply with the mandate of RA 10367. After all, in the preparation for the May 2016 National and Local Elections, time is of the essence. The summary nature of the proceedings does not depart from the fact that petitioners were given the opportunity to be heard. Relatedly, it deserves emphasis that the public has been sufficiently informed of the implementation of RA 10367 and its deactivation feature. RA 10367 was duly published as early as February 22, 2013,107 and took effect fifteen (15) days after.108 Accordingly, dating to the day of its publications, all are bound to know the terms of its provisions, including the consequences of non-compliance. As implemented, the process of biometrics validation commenced on July 1, 2013, or approximately two and a half (2 1/2) years before the October 31, 2015 deadline. To add, the COMELEC conducted a massive public information campaign, i.e., NoBioNoBoto, from May 2014 until October 31, 2015, or a period of eighteen (18) months, whereby voters were reminded to update and validate their registration records. On top of that, the COMELEC exerted efforts to make the validation process more convenient for the public as it enlisted the assistance of malls across Metro Manila to serve as satellite registration centers and declared Sundays as working days for COMELEC offices within the National Capital Region and in highly urbanized cities.109 Considering these steps, the Court finds that the public has been sufficiently apprised of the implementation of RA 10367, and its penalty of deactivation in case of failure to comply. Thus, there was no violation of procedural due process. V. Petitioners aver that the poor experience of other countries - i.e., Guatemala, Britain, Cote d'lvoire, Uganda, and Kenya - in implementing biometrics registration should serve as warning in adhering to the system. They highlighted the inherent difficulties in launching the same such as environmental and geographical challenges, lack of training and skills, mechanical breakdown, and the need for re-registration. They even adrnitted that while biometrics may address electoral fraud caused by multiple registrants, it does not, however, solve other election-related problems such as votebuying and source-code manipulation.110 Aside from treading on mere speculation, the insinuations are improper. Clearly, petitioners' submissions principally assail the wisdom of the legislature in adopting the biometrics registration system in curbing electoral fraud. In this relation, it is significant to point out that questions relating to the wisdom, morality, or practicability of statutes are policy matters that should not be addressed to the judiciary. As elucidated in the case of Fariñas v. The Executive Secretary:111 [P]olicy matters are not the concern of the Court. Government policy is within the exclusive dominion of the political branches of the government. It is not for this Court to look into the wisdom or propriety of legislative determination. Indeed, whether an enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired results, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the serious, conflict of opinions does not suffice to bring them within the range of judicial cognizance.112 (Emphases and underscoring supplied)

Finally, petitioners' proffer that Resolution No. 9863 which fixed the deadline for validation on October 31, 2015 violates Section 8 of RA 8189 which states: Section 8. System of Continuing Registration of Voters. - The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. (Emphasis added.) The position is, once more, wrong. Aside from committing forum shopping by raising this issue despite already being subject of a prior petition filed before this Court, i.e., G.R. No. 220918,114 petitioners fail to consider that the 120- and 90-day periods stated therein refer to the prohibitive period beyond which voter registration may no longer be conducted. As already resolved in this Court's Resolution dated December 8, 2015 in G.R. No. 220918, the subject provision does not mandate COMELEC to conduct voter registration up to such time; rather, it only provides a period which may not be reduced, but may be extended depending on the administrative necessities and other exigencies.115 Verily, as the constitutional body tasked to enforce and implement election laws, the COMELEC has the power to promulgate the necessary rules and regulations to fulfil its mandate.116 Perforce, this power includes the determination of the periods to accomplish certain pre-election acts,117 such as voter registration. At this conclusory juncture, this Court reiterates that voter registration does not begin and end with the filing of applications which, in reality, is just the initial phase that must be followed by the approval of applications by the ERB.118 Thereafter, the process of filing petitions for inclusion and exclusion follows. These steps are necessary for the generation of the1 final list of voters which, in turn, is a pre-requisite for the preparation and completion of the Project of Precincts (POP) that is vital for the actual elections. The POP contains the number of registered voters in each precinct and clustered precinct, the names of the barangays, municipalities, cities, provinces, legislative districts, and regions included in the precincts, and the names and locations of polling centers where each precinct and clustered precinct are assigned.119 The POP is necessary to determine the total number of boards of election inspectors to be constituted, the allocation of forms and supplies to be procured for the election day, the number of vote counting machines and other paraphernalia to be deployed, and the budget needed. More importantly, the POP will be used as the basis for the fmalization of the Election Management System (EMS) which generates the templates of the official ballots and determines the voting jurisdiction of legislative districts, cities, municipalities, and provinces.120 The EMS determines the configuration of the canvassing and consolidation system for each voting jurisdiction. Accordingly, as the constitutional body specifically charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall,121 the COMELEC should be given sufficient leeway in accounting for the exigencies of the upcoming elections. In fine, its measures therefor should be respected, unless it is clearly shown that the same are devoid of any reasonable justification. WHEREFORE, the petition is DISMISSED due to lack of merit. The temporary restraining order issued by this Court on December 1, 2015 is consequently DISSOLVED. SO

ORDERED.chanroblesvirtuallawlibrary

Sereno, Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, Mendoza, Reyes, and Jardeleza, JJ., concur. Leonen, J., see separate concurring opinion.