EN BANC G.R. No.

148208 December 15, 2004

CENTRAL BANK (now Bangko Sentral ng Pilipinas) EMPLOYEES ASSOCIATION, INC., petitioner, vs. BANGKO SENTRAL NG PILIPINAS and the EXECUTIVE SECRETARY, respondents.

DECISION

PUNO, J.: Can a provision of law, initially valid, become subsequently unconstitutional, on the ground that its continued operation would violate the equal protection of the law? We hold that with the passage of the subsequent laws amending the charter of seven (7) other governmental financial institutions (GFIs), the continued operation of the last proviso of Section 15(c), Article II of Republic Act (R.A.) No. 7653, constitutes invidious discrimination on the 2,994 rank-and-file employees of the Bangko Sentral ng Pilipinas (BSP). I. The Case First the facts. On July 3, 1993, R.A. No. 7653 (the New Central Bank Act) took effect. It abolished the old Central Bank of the Philippines, and created a new BSP. On June 8, 2001, almost eight years after the effectivity of R.A. No. 7653, petitioner Central Bank (now BSP) Employees Association, Inc., filed a petition for prohibition against BSP and the Executive Secretary of the Office of the President, to restrain respondents from further implementing

the last proviso in Section 15(c), Article II of R.A. No. 7653, on the ground that it is unconstitutional. Article II, Section 15(c) of R.A. No. 7653 provides: Section 15. Exercise of Authority - In the exercise of its authority, the Monetary Board shall: xxx xxx xxx

(c) establish a human resource management system which shall govern the selection, hiring, appointment, transfer, promotion, or dismissal of all personnel. Such system shall aim to establish professionalism and excellence at all levels of the Bangko Sentral in accordance with sound principles of management. A compensation structure, based on job evaluation studies and wage surveys and subject to the Board's approval, shall be instituted as an integral component of the Bangko Sentral's human resource development program: Provided, That the Monetary Board shall make its own system conform as closely as possible with the principles provided for under Republic Act No. 6758 [Salary Standardization Act]. Provided, however, That compensation and wage structure of employees whose positions fall under salary grade 19 and below shall be in accordance with the rates prescribed under Republic Act No. 6758. [emphasis supplied] The thrust of petitioner's challenge is that the above proviso makes an unconstitutional cut between two classes of employees in the BSP, viz: (1) the BSP officers or those exempted from the coverage of the Salary Standardization Law (SSL) (exempt class); and (2) the rank-and-file (Salary Grade [SG] 19 and below), or those not exempted from the coverage of the SSL (non-exempt class). It is contended that this classification is "a classic case of class legislation," allegedly not based on substantial distinctions which make real differences, but solely on the SG of the BSP personnel's position. Petitioner also claims that it is not germane to the purposes of Section 15(c), Article II of R.A. No. 7653, the most important of which is to establish professionalism and excellence at all levels in the BSP.1 Petitioner offers the following sub-set of arguments:

a. the legislative history of R.A. No. 7653 shows that the questioned proviso does not appear in the original and amended versions of House Bill No. 7037, nor in the original version of Senate Bill No. 1235; 2 b. subjecting the compensation of the BSP rank-and-file employees to the rate prescribed by the SSL actually defeats the purpose of the law3 of establishing professionalism and excellence at all levels in the BSP; 4 (emphasis supplied) c. the assailed proviso was the product of amendments introduced during the deliberation of Senate Bill No. 1235, without showing its relevance to the objectives of the law, and even admitted by one senator as discriminatory against lowsalaried employees of the BSP;5 d. GSIS, LBP, DBP and SSS personnel are all exempted from the coverage of the SSL; thus within the class of rank-and-file personnel of government financial institutions (GFIs), the BSP rank-and-file are also discriminated upon;6 and e. the assailed proviso has caused the demoralization among the BSP rank-and-file and resulted in the gross disparity between their compensation and that of the BSP officers'.7 In sum, petitioner posits that the classification is not reasonable but arbitrary and capricious, and violates the equal protection clause of the Constitution.8 Petitioner also stresses: (a) that R.A. No. 7653 has a separability clause, which will allow the declaration of the unconstitutionality of the proviso in question without affecting the other provisions; and (b) the urgency and propriety of the petition, as some 2,994 BSP rank-and-file employees have been prejudiced since 1994 when the proviso was implemented. Petitioner concludes that: (1) since the inequitable proviso has no force and effect of law, respondents' implementation of such amounts to lack of jurisdiction; and (2) it has no appeal nor any other plain, speedy and adequate remedy in the ordinary course except through this petition for prohibition, which this Court should take cognizance of, considering the transcendental importance of the legal issue involved.9 Respondent BSP, in its comment,10 contends that the provision does not violate the equal protection clause and can stand the constitutional test,

provided it is construed in harmony with other provisions of the same law, such as "fiscal and administrative autonomy of BSP," and the mandate of the Monetary Board to "establish professionalism and excellence at all levels in accordance with sound principles of management." The Solicitor General, on behalf of respondent Executive Secretary, also defends the validity of the provision. Quite simplistically, he argues that the classification is based on actual and real differentiation, even as it adheres to the enunciated policy of R.A. No. 7653 to establish professionalism and excellence within the BSP subject to prevailing laws and policies of the national government.11 II. Issue Thus, the sole - albeit significant - issue to be resolved in this case is whether the last paragraph of Section 15(c), Article II of R.A. No. 7653, runs afoul of the constitutional mandate that "No person shall be. . . denied the equal protection of the laws."12 III. Ruling A. UNDER THE PRESENT STANDARDS OF EQUAL PROTECTION, SECTION 15(c), ARTICLE II OF R.A. NO. 7653 IS VALID. Jurisprudential standards for equal protection challenges indubitably show that the classification created by the questioned proviso, on its face and in its operation, bears no constitutional infirmities. It is settled in constitutional law that the "equal protection" clause does not prevent the Legislature from establishing classes of individuals or objects upon which different rules shall operate - so long as the classification is not unreasonable. As held in Victoriano v. Elizalde Rope Workers' Union,13 and reiterated in a long line of cases:14 The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the

constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate. The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary. In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the classification be based on scientific or marked differences of things or in their relation. Neither is it necessary that the classification be made with mathematical nicety. Hence, legislative classification may in many cases properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from recognizing

degrees of evil or harm, and legislation is addressed to evils as they may appear. (citations omitted) Congress is allowed a wide leeway in providing for a valid classification.15 The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class.16 If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from another.17 The classification must also be germane to the purpose of the law and must apply to all those belonging to the same class.18 In the case at bar, it is clear in the legislative deliberations that the exemption of officers (SG 20 and above) from the SSL was intended to address the BSP's lack of competitiveness in terms of attracting competent officers and executives. It was not intended to discriminate against the rank-and-file. If the end-result did in fact lead to a disparity of treatment between the officers and the rank-and-file in terms of salaries and benefits, the discrimination or distinction has a rational basis and is not palpably, purely, and entirely arbitrary in the legislative sense. 19 That the provision was a product of amendments introduced during the deliberation of the Senate Bill does not detract from its validity. As early as 1947 and reiterated in subsequent cases,20 this Court has subscribed to the conclusiveness of an enrolled bill to refuse invalidating a provision of law, on the ground that the bill from which it originated contained no such provision and was merely inserted by the bicameral conference committee of both Houses. Moreover, it is a fundamental and familiar teaching that all reasonable doubts should be resolved in favor of the constitutionality of a statute.21 An act of the legislature, approved by the executive, is presumed to be within constitutional limitations.22 To justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach.23 B. THE ENACTMENT, HOWEVER, OF SUBSEQUENT LAWS EXEMPTING ALL OTHER RANK-AND-FILE EMPLOYEES OF GFIs FROM THE SSL - RENDERS THE CONTINUED APPLICATION OF THE CHALLENGED PROVISION A VIOLATION OF THE EQUAL PROTECTION CLAUSE.

While R.A. No. 7653 started as a valid measure well within the legislature's power, we hold that the enactment of subsequent laws exempting all rank-and-file employees of other GFIs leeched all validity out of the challenged proviso. 1. The concept of relative constitutionality. The constitutionality of a statute cannot, in every instance, be determined by a mere comparison of its provisions with applicable provisions of the Constitution, since the statute may be constitutionally valid as applied to one set of facts and invalid in its application to another.24 A statute valid at one time may become void at another time because of altered circumstances.25 Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the light of changed conditions.26 Demonstrative of this doctrine is Vernon Park Realty v. City of Mount Vernon,27 where the Court of Appeals of New York declared as unreasonable and arbitrary a zoning ordinance which placed the plaintiff's property in a residential district, although it was located in the center of a business area. Later amendments to the ordinance then prohibited the use of the property except for parking and storage of automobiles, and service station within a parking area. The Court found the ordinance to constitute an invasion of property rights which was contrary to constitutional due process. It ruled: While the common council has the unquestioned right to enact zoning laws respecting the use of property in accordance with a well-considered and comprehensive plan designed to promote public health, safety and general welfare, such power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably and this is so whenever the zoning ordinance precludes the use of the property for any purpose for which it is reasonably adapted. By the same token, an ordinance valid when adopted will nevertheless be stricken down as invalid when, at a later time, its operation under changed conditions proves confiscatory such, for instance, as when the greater part of its value is destroyed, for which the

courts will afford relief in an appropriate case.28 (citations omitted, emphasis supplied) In the Philippine setting, this Court declared the continued enforcement of a valid law as unconstitutional as a consequence of significant changes in circumstances. Rutter v. Esteban29 upheld the constitutionality of the moratorium law - its enactment and operation being a valid exercise by the State of its police power30 - but also ruled that the continued enforcement of the otherwise valid law would be unreasonable and oppressive. It noted the subsequent changes in the country's business, industry and agriculture. Thus, the law was set aside because its continued operation would be grossly discriminatory and lead to the oppression of the creditors. The landmark ruling states:31 The question now to be determined is, is the period of eight (8) years which Republic Act No. 342 grants to debtors of a monetary obligation contracted before the last global war and who is a war sufferer with a claim duly approved by the Philippine War Damage Commission reasonable under the present circumstances? It should be noted that Republic Act No. 342 only extends relief to debtors of prewar obligations who suffered from the ravages of the last war and who filed a claim for their losses with the Philippine War Damage Commission. It is therein provided that said obligation shall not be due and demandable for a period of eight (8) years from and after settlement of the claim filed by the debtor with said Commission. The purpose of the law is to afford to prewar debtors an opportunity to rehabilitate themselves by giving them a reasonable time within which to pay their prewar debts so as to prevent them from being victimized by their creditors. While it is admitted in said law that since liberation conditions have gradually returned to normal, this is not so with regard to those who have suffered the ravages of war and so it was therein declared as a policy that as to them the debt moratorium should be continued in force (Section 1). But we should not lose sight of the fact that these obligations had been pending since 1945 as a result of the issuance of

Executive Orders Nos. 25 and 32 and at present their enforcement is still inhibited because of the enactment of Republic Act No. 342 and would continue to be unenforceable during the eight-year period granted to prewar debtors to afford them an opportunity to rehabilitate themselves, which in plain language means that the creditors would have to observe a vigil of at least twelve (12) years before they could effect a liquidation of their investment dating as far back as 1941. his period seems to us unreasonable, if not oppressive. While the purpose of Congress is plausible, and should be commended, the relief accorded works injustice to creditors who are practically left at the mercy of the debtors. Their hope to effect collection becomes extremely remote, more so if the credits are unsecured. And the injustice is more patent when, under the law, the debtor is not even required to pay interest during the operation of the relief, unlike similar statutes in the United States. xxx xxx xxx

In the face of the foregoing observations, and consistent with what we believe to be as the only course dictated by justice, fairness and righteousness, we feel that the only way open to us under the present circumstances is to declare that the continued operation and enforcement of Republic Act No. 342 at the present time is unreasonable and oppressive, and should not be prolonged a minute longer, and, therefore, the same should be declared null and void and without effect. (emphasis supplied, citations omitted) 2. Applicability of the equal protection clause. In the realm of equal protection, the U.S. case of Atlantic Coast Line R. Co. v. Ivey32 is illuminating. The Supreme Court of Florida ruled against the continued application of statutes authorizing the recovery of double damages plus attorney's fees against railroad companies, for animals killed on unfenced railroad right of way without proof of negligence. Competitive motor carriers, though creating greater hazards, were not subjected to similar liability because they were not yet in existence when the statutes were enacted. The Court ruled that the statutes became invalid as denying

"equal protection of the law," in view of changed conditions since their enactment. In another U.S. case, Louisville & N.R. Co. v. Faulkner,33 the Court of Appeals of Kentucky declared unconstitutional a provision of a statute which imposed a duty upon a railroad company of proving that it was free from negligence in the killing or injury of cattle by its engine or cars. This, notwithstanding that the constitutionality of the statute, enacted in 1893, had been previously sustained. Ruled the Court: The constitutionality of such legislation was sustained because it applied to all similar corporations and had for its object the safety of persons on a train and the protection of property. Of course, there were no automobiles in those days. The subsequent inauguration and development of transportation by motor vehicles on the public highways by common carriers of freight and passengers created even greater risks to the safety of occupants of the vehicles and of danger of injury and death of domestic animals. Yet, under the law the operators of that mode of competitive transportation are not subject to the same extraordinary legal responsibility for killing such animals on the public roads as are railroad companies for killing them on their private rights of way. The Supreme Court, speaking through Justice Brandeis in Nashville, C. & St. L. Ry. Co. v. Walters, 294 U.S. 405, 55 S.Ct. 486, 488, 79 L.Ed. 949, stated, "A statute valid when enacted may become invalid by change in the conditions to which it is applied. The police power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably." A number of prior opinions of that court are cited in support of the statement. The State of Florida for many years had a statute, F.S.A. 356.01 et seq. imposing extraordinary and special duties upon railroad companies, among which was that a railroad company was liable for double damages and an attorney's fee for killing livestock by a train without the owner having to prove any act of negligence on the part of the carrier in the operation of its train. In Atlantic Coast Line Railroad Co. v. Ivey, it was held that the changed conditions brought about by motor vehicle transportation rendered the statute

unconstitutional since if a common carrier by motor vehicle had killed the same animal, the owner would have been required to prove negligence in the operation of its equipment. Said the court, "This certainly is not equal protection of the law."34 (emphasis supplied) Echoes of these rulings resonate in our case law, viz: [C]ourts are not confined to the language of the statute under challenge in determining whether that statute has any discriminatory effect. A statute nondiscriminatory on its face may be grossly discriminatory in its operation. Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.35 (emphasis supplied, citations omitted) [W]e see no difference between a law which denies equal protection and a law which permits of such denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibition.. In other words, statutes may be adjudged unconstitutional because of their effect in operation. If a law has the effect of denying the equal protection of the law it is unconstitutional. .36 (emphasis supplied, citations omitted 3. Enactment of R.A. Nos. 7907 + 8282 + 8289 + 8291 + 8523 + 8763 + 9302 = consequential unconstitutionality of challenged proviso. According to petitioner, the last proviso of Section 15(c), Article II of R.A. No. 7653 is also violative of the equal protection clause because after it was enacted, the charters of the GSIS, LBP, DBP and SSS were also amended, but the personnel of the latter GFIs were all exempted from the coverage of the SSL.37 Thus, within the class of rank-and-file personnel of GFIs, the BSP rank-and-file are also discriminated upon.

Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress also undertook the amendment of the charters of the GSIS, LBP, DBP and SSS, and three other GFIs, from 1995 to 2004, viz: 1. R.A. No. 7907 (1995) for Land Bank of the Philippines (LBP); 2. R.A. No. 8282 (1997) for Social Security System (SSS); 3. R.A. No. 8289 (1997) for Small Business Guarantee and Finance Corporation, (SBGFC); 4. R.A. No. 8291 (1997) for Government Service Insurance System (GSIS); 5. R.A. No. 8523 (1998) for Development Bank of the Philippines (DBP); 6. R.A. No. 8763 (2000) for Home Guaranty Corporation (HGC);38 and 7. R.A. No. 9302 (2004) for Philippine Deposit Insurance Corporation (PDIC). It is noteworthy, as petitioner points out, that the subsequent charters of the seven other GFIs share this common proviso: a blanket exemption of all their employees from the coverage of the SSL, expressly or impliedly, as illustrated below: 1. LBP (R.A. No. 7907) Section 10. Section 90 of [R.A. No. 3844] is hereby amended to read as follows: Section 90. Personnel. xxx xxx xxx

All positions in the Bank shall be governed by a compensation, position classification system and qualification standards approved by the Bank's Board of Directors based on a comprehensive job analysis and audit of actual duties and

responsibilities. The compensation plan shall be comparable with the prevailing compensation plans in the private sector and shall be subject to periodic review by the Board no more than once every two (2) years without prejudice to yearly merit reviews or increases based on productivity and profitability. The Bank shall therefore be exempt from existing laws, rules and regulations on compensation, position classification and qualification standards. It shall however endeavor to make its system conform as closely as possible with the principles under Republic Act No. 6758. (emphasis supplied) xxx 2. SSS (R.A. No. 8282) Section 1. [Amending R.A. No. 1161, Section 3(c)]: xxx xxx xxx xxx xxx

(c)The Commission, upon the recommendation of the SSS President, shall appoint an actuary and such other personnel as may [be] deemed necessary; fix their reasonable compensation, allowances and other benefits; prescribe their duties and establish such methods and procedures as may be necessary to insure the efficient, honest and economical administration of the provisions and purposes of this Act: Provided, however, That the personnel of the SSS below the rank of Vice President shall be appointed by the SSS President: Provided, further, That the personnel appointed by the SSS President, except those below the rank of assistant manager, shall be subject to the confirmation by the Commission; Provided further, That the personnel of the SSS shall be selected only from civil service eligibles and be subject to civil service rules and regulations: Provided, finally, That the SSS shall be exempt from the provisions of Republic Act No. 6758 and Republic Act No. 7430. (emphasis supplied) 3. SBGFC (R.A. No. 8289) Section 8. [Amending R.A. No. 6977, Section 11]:

xxx

xxx

xxx

The Small Business Guarantee and Finance Corporation shall: xxx xxx xxx

(e) notwithstanding the provisions of Republic Act No. 6758, and Compensation Circular No. 10, series of 1989 issued by the Department of Budget and Management, the Board of Directors of SBGFC shall have the authority to extend to the employees and personnel thereof the allowance and fringe benefits similar to those extended to and currently enjoyed by the employees and personnel of other government financial institutions. (emphases supplied) 4. GSIS (R.A. No. 8291) Section 1. [Amending Section 43(d)]. xxx xxx xxx

Sec. 43. Powers and Functions of the Board of Trustees. - The Board of Trustees shall have the following powers and functions: xxx xxx xxx

(d) upon the recommendation of the President and General Manager, to approve the GSIS' organizational and administrative structures and staffing pattern, and to establish, fix, review, revise and adjust the appropriate compensation package for the officers and employees of the GSIS with reasonable allowances, incentives, bonuses, privileges and other benefits as may be necessary or proper for the effective management, operation and administration of the GSIS, which shall be exempt from Republic Act No. 6758, otherwise known as the Salary Standardization Law and Republic Act No. 7430, otherwise known as the Attrition Law. (emphasis supplied)

xxx 5. DBP (R.A. No. 8523)

xxx

xxx

Section 6. [Amending E.O. No. 81, Section 13]: Section 13. Other Officers and Employees. - The Board of Directors shall provide for an organization and staff of officers and employees of the Bank and upon recommendation of the President of the Bank, fix their remunerations and other emoluments. All positions in the Bank shall be governed by the compensation, position classification system and qualification standards approved by the Board of Directors based on a comprehensive job analysis of actual duties and responsibilities. The compensation plan shall be comparable with the prevailing compensation plans in the private sector and shall be subject to periodic review by the Board of Directors once every two (2) years, without prejudice to yearly merit or increases based on the Bank's productivity and profitability. The Bank shall, therefore, be exempt from existing laws, rules, and regulations on compensation, position classification and qualification standards. The Bank shall however, endeavor to make its system conform as closely as possible with the principles under Compensation and Position Classification Act of 1989 (Republic Act No. 6758, as amended). (emphasis supplied) 6. HGC (R.A. No. 8763) Section 9. Powers, Functions and Duties of the Board of Directors. - The Board shall have the following powers, functions and duties: xxx xxx xxx

(e) To create offices or positions necessary for the efficient management, operation and administration of the Corporation: Provided, That all positions in the Home Guaranty Corporation (HGC) shall be governed by a compensation and position classification system and qualifications standards approved by the Corporation's Board of Directors based on a comprehensive job analysis and audit of actual duties and responsibilities:

Provided, further, That the compensation plan shall be comparable with the prevailing compensation plans in the private sector and which shall be exempt from Republic Act No. 6758, otherwise known as the Salary Standardization Law, and from other laws, rules and regulations on salaries and compensations; and to establish a Provident Fund and determine the Corporation's and the employee's contributions to the Fund; (emphasis supplied) xxx 7. PDIC (R.A. No. 9302) Section 2. Section 2 of [Republic Act No. 3591, as amended] is hereby further amended to read: xxx 3. xxx xxx xxx xxx xxx xxx xxx

A compensation structure, based on job evaluation studies and wage surveys and subject to the Board's approval, shall be instituted as an integral component of the Corporation's human resource development program: Provided, That all positions in the Corporation shall be governed by a compensation, position classification system and qualification standards approved by the Board based on a comprehensive job analysis and audit of actual duties and responsibilities. The compensation plan shall be comparable with the prevailing compensation plans of other government financial institutions and shall be subject to review by the Board no more than once every two (2) years without prejudice to yearly merit reviews or increases based on productivity and profitability. The Corporation shall therefore be exempt from existing laws, rules and regulations on compensation, position classification and qualification standards. It shall however endeavor to make its system conform as closely as possible with the principles under Republic Act No. 6758, as amended. (emphases supplied)

Thus, eleven years after the amendment of the BSP charter, the rankand-file of seven other GFIs were granted the exemption that was specifically denied to the rank-and-file of the BSP. And as if to add insult to petitioner's injury, even the Securities and Exchange Commission (SEC) was granted the same blanket exemption from the SSL in 2000!39 The prior view on the constitutionality of R.A. No. 7653 was confined to an evaluation of its classification between the rank-and-file and the officers of the BSP, found reasonable because there were substantial distinctions that made real differences between the two classes. The above-mentioned subsequent enactments, however, constitute significant changes in circumstance that considerably alter the reasonability of the continued operation of the last proviso of Section 15(c), Article II of Republic Act No. 7653, thereby exposing the proviso to more serious scrutiny. This time, the scrutiny relates to the constitutionality of the classification - albeit made indirectly as a consequence of the passage of eight other laws - between the rank-andfile of the BSP and the seven other GFIs. The classification must not only be reasonable, but must also apply equally to all members of the class. The proviso may be fair on its face and impartial in appearance but it cannot be grossly discriminatory in its operation, so as practically to make unjust distinctions between persons who are without differences.40 Stated differently, the second level of inquiry deals with the following questions: Given that Congress chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can the exclusion of the rank-and-file employees of the BSP stand constitutional scrutiny in the light of the fact that Congress did not exclude the rank-and-file employees of the other GFIs? Is Congress' power to classify so unbridled as to sanction unequal and discriminatory treatment, simply because the inequity manifested itself, not instantly through a single overt act, but gradually and progressively, through seven separate acts of Congress? Is the right to equal protection of the law bounded in time and space that: (a) the right can only be invoked against a classification made directly and deliberately, as opposed to a discrimination that arises indirectly, or as a consequence of several other acts; and (b) is the legal analysis confined to determining the validity within the parameters of the statute or ordinance (where the inclusion or exclusion is articulated), thereby proscribing any evaluation vis--vis the grouping, or

the lack thereof, among several similar enactments made over a period of time? In this second level of scrutiny, the inequality of treatment cannot be justified on the mere assertion that each exemption (granted to the seven other GFIs) rests "on a policy determination by the legislature." All legislative enactments necessarily rest on a policy determination even those that have been declared to contravene the Constitution. Verily, if this could serve as a magic wand to sustain the validity of a statute, then no due process and equal protection challenges would ever prosper. There is nothing inherently sacrosanct in a policy determination made by Congress or by the Executive; it cannot run riot and overrun the ramparts of protection of the Constitution. In fine, the "policy determination" argument may support the inequality of treatment between the rank-and-file and the officers of the BSP, but it cannot justify the inequality of treatment between BSP rank-and-file and other GFIs' who are similarly situated. It fails to appreciate that what is at issue in the second level of scrutiny is not the declared policy of each law per se, but the oppressive results of Congress' inconsistent and unequal policy towards the BSP rank-and-file and those of the seven other GFIs. At bottom, the second challenge to the constitutionality of Section 15(c), Article II of Republic Act No. 7653 is premised precisely on the irrational discriminatory policy adopted by Congress in its treatment of persons similarly situated. In the field of equal protection, the guarantee that "no person shall be denied the equal protection of the laws" includes the prohibition against enacting laws that allow invidious discrimination, directly or indirectly. If a law has the effect of denying the equal protection of the law, or permits such denial, it is unconstitutional.41 It is against this standard that the disparate treatment of the BSP rank-andfile from the other GFIs cannot stand judicial scrutiny. For as regards the exemption from the coverage of the SSL, there exist no substantial distinctions so as to differentiate, the BSP rank-and-file from the other rankand-file of the seven GFIs. On the contrary, our legal history shows that GFIs have long been recognized as comprising one distinct class, separate from other governmental entities. Before the SSL, Presidential Decree (P.D.) No. 985 (1976) declared it as a State policy (1) to provide equal pay for substantially equal work, and (2) to

base differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions. P.D. No. 985 was passed to address disparities in pay among similar or comparable positions which had given rise to dissension among government employees. But even then, GFIs and government-owned and/or controlled corporations (GOCCs) were already identified as a distinct class among government employees. Thus, Section 2 also provided, "[t]hat notwithstanding a standardized salary system established for all employees, additional financial incentives may be established by government corporation and financial institutions for their employees to be supported fully from their corporate funds and for such technical positions as may be approved by the President in critical government agencies."42 The same favored treatment is made for the GFIs and the GOCCs under the SSL. Section 3(b) provides that one of the principles governing the Compensation and Position Classification System of the Government is that: "[b]asic compensation for all personnel in the government and government-owned or controlled corporations and financial institutions shall generally be comparable with those in the private sector doing comparable work, and must be in accordance with prevailing laws on minimum wages." Thus, the BSP and all other GFIs and GOCCs were under the unified Compensation and Position Classification System of the SSL,43 but rates of pay under the SSL were determined on the basis of, among others, prevailing rates in the private sector for comparable work. Notably, the Compensation and Position Classification System was to be governed by the following principles: (a) just and equitable wages, with the ratio of compensation between pay distinctions maintained at equitable levels;44 and (b) basic compensation generally comparable with the private sector, in accordance with prevailing laws on minimum wages.45 Also, the Department of Budget and Management was directed to use, as guide for preparing the Index of Occupational Services, the Benchmark Position Schedule, and the following factors:46 (1) the education and experience required to perform the duties and responsibilities of the positions; (2) the nature and complexity of the work to be performed; (3) the kind of supervision received;

(4) mental and/or physical strain required in the completion of the work; (5) nature and extent of internal and external relationships; (6) kind of supervision exercised; (7) decision-making responsibility; (8) responsibility for accuracy of records and reports; (9) accountability for funds, properties and equipment; and (10) hardship, hazard and personal risk involved in the job. The Benchmark Position Schedule enumerates the position titles that fall within Salary Grades 1 to 20. Clearly, under R.A. No. 6758, the rank-and-file of all GFIs were similarly situated in all aspects pertaining to compensation and position classification, in consonance with Section 5, Article IX-B of the 1997 Constitution.47 Then came the enactment of the amended charter of the BSP, implicitly exempting the Monetary Board from the SSL by giving it express authority to determine and institute its own compensation and wage structure. However, employees whose positions fall under SG 19 and below were specifically limited to the rates prescribed under the SSL. Subsequent amendments to the charters of other GFIs followed. Significantly, each government financial institution (GFI) was not only expressly authorized to determine and institute its own compensation and wage structure, but also explicitly exempted - without distinction as to salary grade or position - all employees of the GFI from the SSL. It has been proffered that legislative deliberations justify the grant or withdrawal of exemption from the SSL, based on the perceived need "to fulfill the mandate of the institution concerned considering, among others, that: (1) the GOCC or GFI is essentially proprietary in character; (2) the GOCC or GFI is in direct competition with their [sic] counterparts in the private sector, not only in terms of the provisions of goods or services, but

also in terms of hiring and retaining competent personnel; and (3) the GOCC or GFI are or were [sic] experiencing difficulties filling up plantilla positions with competent personnel and/or retaining these personnel. The need for the scope of exemption necessarily varies with the particular circumstances of each institution, and the corresponding variance in the benefits received by the employees is merely incidental." The fragility of this argument is manifest. First, the BSP is the central monetary authority,48 and the banker of the government and all its political subdivisions.49 It has the sole power and authority to issue currency;50 provide policy directions in the areas of money, banking, and credit; and supervise banks and regulate finance companies and non-bank financial institutions performing quasi-banking functions, including the exempted GFIs.51 Hence, the argument that the rank-and-file employees of the seven GFIs were exempted because of the importance of their institution's mandate cannot stand any more than an empty sack can stand. Second, it is certainly misleading to say that "the need for the scope of exemption necessarily varies with the particular circumstances of each institution." Nowhere in the deliberations is there a cogent basis for the exclusion of the BSP rank-and-file from the exemption which was granted to the rank-and-file of the other GFIs and the SEC. As point in fact, the BSP and the seven GFIs are similarly situated in so far as Congress deemed it necessary for these institutions to be exempted from the SSL. True, the SSL-exemption of the BSP and the seven GFIs was granted in the amended charters of each GFI, enacted separately and over a period of time. But it bears emphasis that, while each GFI has a mandate different and distinct from that of another, the deliberations show that the raison d'tre of the SSL-exemption was inextricably linked to and for the most part based on factors common to the eight GFIs, i.e., (1) the pivotal role they play in the economy; (2) the necessity of hiring and retaining qualified and effective personnel to carry out the GFI's mandate; and (3) the recognition that the compensation package of these GFIs is not competitive, and fall substantially below industry standards. Considering further that (a) the BSP was the first GFI granted SSL exemption; and (b) the subsequent exemptions of other GFIs did not distinguish between the officers and the rank-and-file; it is patent that the classification made between the BSP rank-and-file and those of the other seven GFIs was inadvertent, and NOT intended, i.e., it was not based on any substantial distinction vis--vis the particular circumstances of each GFI. Moreover, the exemption granted

to two GFIs makes express reference to allowance and fringe benefits similar to those extended to and currently enjoyed by the employees and personnel of other GFIs,52 underscoring that GFIs are a particular class within the realm of government entities. It is precisely this unpremeditated discrepancy in treatment of the rank-andfile of the BSP - made manifest and glaring with each and every consequential grant of blanket exemption from the SSL to the other GFIs that cannot be rationalized or justified. Even more so, when the SEC which is not a GFI - was given leave to have a compensation plan that "shall be comparable with the prevailing compensation plan in the [BSP] and other [GFIs],"53 then granted a blanket exemption from the SSL, and its rank-and-file endowed a more preferred treatment than the rank-and-file of the BSP. The violation to the equal protection clause becomes even more pronounced when we are faced with this undeniable truth: that if Congress had enacted a law for the sole purpose of exempting the eight GFIs from the coverage of the SSL, the exclusion of the BSP rank-and-file employees would have been devoid of any substantial or material basis. It bears no moment, therefore, that the unlawful discrimination was not a direct result arising from one law. "Nemo potest facere per alium quod non potest facere per directum." No one is allowed to do indirectly what he is prohibited to do directly. It has also been proffered that "similarities alone are not sufficient to support the conclusion that rank-and-file employees of the BSP may be lumped together with similar employees of the other GOCCs for purposes of compensation, position classification and qualification standards. The fact that certain persons have some attributes in common does not automatically make them members of the same class with respect to a legislative classification." Cited is the ruling in Johnson v. Robinson:54 "this finding of similarity ignores that a common characteristic shared by beneficiaries and nonbeneficiaries alike, is not sufficient to invalidate a statute when other characteristics peculiar to only one group rationally explain the statute's different treatment of the two groups." The reference to Johnson is inapropos. In Johnson, the US Court sustained the validity of the classification as there were quantitative and qualitative distinctions, expressly recognized by Congress, which formed a

rational basis for the classification limiting educational benefits to military service veterans as a means of helping them readjust to civilian life. The Court listed the peculiar characteristics as follows: First, the disruption caused by military service is quantitatively greater than that caused by alternative civilian service. A conscientious objector performing alternative service is obligated to work for two years. Service in the Armed Forces, on the other hand, involves a six-year commitment xxx xxx xxx

Second, the disruptions suffered by military veterans and alternative service performers are qualitatively different. Military veterans suffer a far greater loss of personal freedom during their service careers. Uprooted from civilian life, the military veteran becomes part of the military establishment, subject to its discipline and potentially hazardous duty. Congress was acutely aware of the peculiar disabilities caused by military service, in consequence of which military servicemen have a special need for readjustment benefits55 (citations omitted) In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are no characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the exemption which BSP rank-and-file employees were denied (not to mention the anomaly of the SEC getting one). The distinction made by the law is not only superficial,56 but also arbitrary. It is not based on substantial distinctions that make real differences between the BSP rank-and-file and the seven other GFIs. Moreover, the issue in this case is not - as the dissenting opinion of Mme. Justice Carpio-Morales would put it - whether "being an employee of a GOCC or GFI is reasonable and sufficient basis for exemption" from R.A. No. 6758. It is Congress itself that distinguished the GFIs from other government agencies, not once but eight times, through the enactment of R.A. Nos. 7653, 7907, 8282, 8289, 8291, 8523, 8763, and 9302. These laws may have created a "preferred sub-class within government employees," but the present challenge is not directed at the wisdom of these laws. Rather, it is a legal conundrum involving the exercise of legislative power, the validity of which must be measured not only by

looking at the specific exercise in and by itself (R.A. No. 7653), but also as to the legal effects brought about by seven separate exercises - albeit indirectly and without intent. Thus, even if petitioner had not alleged "a comparable change in the factual milieu as regards the compensation, position classification and qualification standards of the employees of the BSP (whether of the executive level or of the rank-and-file) since the enactment of the new Central Bank Act" is of no moment. In GSIS v. Montesclaros,57 this Court resolved the issue of constitutionality notwithstanding that claimant had manifested that she was no longer interested in pursuing the case, and even when the constitutionality of the said provision was not squarely raised as an issue, because the issue involved not only the claimant but also others similarly situated and whose claims GSIS would also deny based on the challenged proviso. The Court held that social justice and public interest demanded the resolution of the constitutionality of the proviso. And so it is with the challenged proviso in the case at bar. It bears stressing that the exemption from the SSL is a "privilege" fully within the legislative prerogative to give or deny. However, its subsequent grant to the rank-and-file of the seven other GFIs and continued denial to the BSP rank-and-file employees breached the latter's right to equal protection. In other words, while the granting of a privilege per se is a matter of policy exclusively within the domain and prerogative of Congress, the validity or legality of the exercise of this prerogative is subject to judicial review.58 So when the distinction made is superficial, and not based on substantial distinctions that make real differences between those included and excluded, it becomes a matter of arbitrariness that this Court has the duty and the power to correct.59 As held in the United Kingdom case of Hooper v. Secretary of State for Work and Pensions,60 once the State has chosen to confer benefits, "discrimination" contrary to law may occur where favorable treatment already afforded to one group is refused to another, even though the State is under no obligation to provide that favorable treatment. 61 The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs definitely bears the unmistakable badge of invidious discrimination - no one can, with candor and fairness, deny the discriminatory character of the subsequent blanket and total exemption of

the seven other GFIs from the SSL when such was withheld from the BSP. Alikes are being treated as unalikes without any rational basis. Again, it must be emphasized that the equal protection clause does not demand absolute equality but it requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion; whatever restrictions cast on some in the group is equally binding on the rest.62 In light of the lack of real and substantial distinctions that would justify the unequal treatment between the rank-and-file of BSP from the seven other GFIs, it is clear that the enactment of the seven subsequent charters has rendered the continued application of the challenged proviso anathema to the equal protection of the law, and the same should be declared as an outlaw. IV. Equal Protection Under International Lens In our jurisdiction, the standard and analysis of equal protection challenges in the main have followed the "rational basis" test, coupled with a deferential attitude to legislative classifications63 and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution. 64 A. Equal Protection in the United States In contrast, jurisprudence in the U.S. has gone beyond the static "rational basis" test. Professor Gunther highlights the development in equal protection jurisprudential analysis, to wit: 65 Traditionally, equal protection supported only minimal judicial intervention in most contexts. Ordinarily, the command of equal protection was only that government must not impose differences in treatment "except upon some reasonable

differentiation fairly related to the object of regulation." The old variety of equal protection scrutiny focused solely on the means used by the legislature: it insisted merely that the classification in the statute reasonably relates to the legislative purpose. Unlike substantive due process, equal protection scrutiny was not typically concerned with identifying "fundamental values" and restraining legislative ends. And usually the rational classification requirement was readily satisfied: the courts did not demand a tight fit between classification and purpose; perfect congruence between means and ends was not required. xxx xxx xxx

[From marginal intervention to major cutting edge: The Warren Court's "new equal protection" and the two-tier approach.] From its traditional modest role, equal protection burgeoned into a major intervention tool during the Warren era, especially in the 1960s. The Warren Court did not abandon the deferential ingredients of the old equal protection: in most areas of economic and social legislation, the demands imposed by equal protection remained as minimal as everBut the Court launched an equal protection revolution by finding large new areas for strict rather than deferential scrutiny. A sharply differentiated two-tier approach evolved by the late 1960s: in addition to the deferential "old" equal protection, a "new" equal protection, connoting strict scrutiny, arose. The intensive review associated with the new equal protection imposed two demands - a demand not only as to means but also one as to ends. Legislation qualifying for strict scrutiny required a far closer fit between classification and statutory purpose than the rough and ready flexibility traditionally tolerated by the old equal protection: means had to be shown "necessary" to achieve statutory ends, not merely "reasonably related" ones. Moreover, equal protection became a source of ends scrutiny as well: legislation in the areas of the new equal protection had to be justified by "compelling" state interests, not merely the wide spectrum of "legitimate" state ends.

The Warren Court identified the areas appropriate for strict scrutiny by searching for two characteristics: the presence of a "suspect" classification; or an impact on "fundamental" rights or interests. In the category of "suspect classifications," the Warren Court's major contribution was to intensify the strict scrutiny in the traditionally interventionist area of racial classifications. But other cases also suggested that there might be more other suspect categories as well: illegitimacy and wealth for example. But it was the 'fundamental interests" ingredient of the new equal protection that proved particularly dynamic, open-ended, and amorphous.. [Other fundamental interests included voting, criminal appeals, and the right of interstate travel .] xxx xxx xxx

The Burger Court and Equal Protection. The Burger Court was reluctant to expand the scope of the new equal protection, although its best established ingredient retains vitality. There was also mounting discontent with the rigid two-tier formulations of the Warren Court's equal protection doctrine. It was prepared to use the clause as an interventionist tool without resorting to the strict language of the new equal protection. [Among the fundamental interests identified during this time were voting and access to the ballot, while "suspect" classifications included sex, alienage and illegitimacy.] xxx xxx xxx

Even while the two-tier scheme has often been adhered to in form, there has also been an increasingly noticeable resistance to the sharp difference between deferential "old" and interventionist "new" equal protection. A number of justices sought formulations that would blur the sharp distinctions of the two-tiered approach or that would narrow the gap between strict scrutiny and deferential review. The most elaborate attack came from Justice Marshall, whose frequently stated position

was developed most elaborately in his dissent in the Rodriguez case: 66 The Court apparently seeks to establish [that] equal protection cases fall into one of two neat categories which dictate the appropriate standard of review - strict scrutiny or mere rationality. But this (sic) Court's [decisions] defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the equal protection clause. This spectrum clearly comprehends variations in the degree of care with which Court will scrutinize particular classification, depending, I believe, on the constitutional and societal importance of the interests adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. Justice Marshall's "sliding scale" approach describes many of the modern decisions, although it is a formulation that the majority refused to embrace. But the Burger Court's results indicate at least two significant changes in equal protection law: First, invocation of the "old" equal protection formula no longer signals, as it did with the Warren Court, an extreme deference to legislative classifications and a virtually automatic validation of challenged statutes. Instead, several cases, even while voicing the minimal "rationality" "hands-off" standards of the old equal protection, proceed to find the statute unconstitutional. Second, in some areas the modern Court has put forth standards for equal protection review that, while clearly more intensive than the deference of the "old" equal protection, are less demanding than the strictness of the "new" equal protection. Sex discrimination is the best established example of an "intermediate" level of review. Thus, in one case, the Court said that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." That standard is "intermediate" with respect to both ends and means: where ends must be "compelling" to survive strict scrutiny and merely "legitimate" under the "old" mode, "important" objectives are required here; and where means must be "necessary"

under the "new" equal protection, and merely "rationally related" under the "old" equal protection, they must be "substantially related" to survive the "intermediate" level of review. (emphasis supplied, citations omitted) B. Equal Protection in Europe The United Kingdom and other members of the European Community have also gone forward in discriminatory legislation and jurisprudence. Within the United Kingdom domestic law, the most extensive list of protected grounds can be found in Article 14 of the European Convention on Human Rights (ECHR). It prohibits discrimination on grounds such as "sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." This list is illustrative and not exhaustive. Discrimination on the basis of race, sex and religion is regarded as grounds that require strict scrutiny. A further indication that certain forms of discrimination are regarded as particularly suspect under the Covenant can be gleaned from Article 4, which, while allowing states to derogate from certain Covenant articles in times of national emergency, prohibits derogation by measures that discriminate solely on the grounds of "race, colour, language, religion or social origin."67 Moreover, the European Court of Human Rights has developed a test of justification which varies with the ground of discrimination. In the Belgian Linguistics case68 the European Court set the standard of justification at a low level: discrimination would contravene the Convention only if it had no legitimate aim, or there was no reasonable relationship of proportionality between the means employed and the aim sought to be realised.69 But over the years, the European Court has developed a hierarchy of grounds covered by Article 14 of the ECHR, a much higher level of justification being required in respect of those regarded as "suspect" (sex, race, nationality, illegitimacy, or sexual orientation) than of others. Thus, in Abdulaziz, 70 the European Court declared that: . . . [t]he advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention.

And in Gaygusuz v. Austria,71 the European Court held that "very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention."72 The European Court will then permit States a very much narrower margin of appreciation in relation to discrimination on grounds of sex, race, etc., in the application of the Convention rights than it will in relation to distinctions drawn by states between, for example, large and small land-owners. 73 C. Equality under International Law The principle of equality has long been recognized under international law. Article 1 of the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights. Nondiscrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes basic principles in the protection of human rights. 74 Most, if not all, international human rights instruments include some prohibition on discrimination and/or provisions about equality.75 The general international provisions pertinent to discrimination and/or equality are the International Covenant on Civil and Political Rights (ICCPR);76 the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of all Forms of Racial Discrimination (CERD);77 the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW); and the Convention on the Rights of the Child (CRC). In the broader international context, equality is also enshrined in regional instruments such as the American Convention on Human Rights;78 the African Charter on Human and People's Rights;79 the European Convention on Human Rights;80 the European Social Charter of 1961 and revised Social Charter of 1996; and the European Union Charter of Rights (of particular importance to European states). Even the Council of the League of Arab States has adopted the Arab Charter on Human Rights in 1994, although it has yet to be ratified by the Member States of the League.81 The equality provisions in these instruments do not merely function as traditional "first generation" rights, commonly viewed as

concerned only with constraining rather than requiring State action. Article 26 of the ICCPR requires "guarantee[s]" of "equal and effective protection against discrimination" while Articles 1 and 14 of the American and European Conventions oblige States Parties "to ensure ... the full and free exercise of [the rights guaranteed] ... without any discrimination" and to "secure without discrimination" the enjoyment of the rights guaranteed.82 These provisions impose a measure of positive obligation on States Parties to take steps to eradicate discrimination. In the employment field, basic detailed minimum standards ensuring equality and prevention of discrimination, are laid down in the ICESCR83 and in a very large number of Conventions administered by the International Labour Organisation, a United Nations body. 84 Additionally, many of the other international and regional human rights instruments have specific provisions relating to employment.85 The United Nations Human Rights Committee has also gone beyond the earlier tendency to view the prohibition against discrimination (Article 26) as confined to the ICCPR rights.86 In Broeks87 and Zwaan-de Vries,88 the issue before the Committee was whether discriminatory provisions in the Dutch Unemployment Benefits Act (WWV) fell within the scope of Article 26. The Dutch government submitted that discrimination in social security benefit provision was not within the scope of Article 26, as the right was contained in the ICESCR and not the ICCPR. They accepted that Article 26 could go beyond the rights contained in the Covenant to other civil and political rights, such as discrimination in the field of taxation, but contended that Article 26 did not extend to the social, economic, and cultural rights contained in ICESCR. The Committee rejected this argument. In its view, Article 26 applied to rights beyond the Covenant including the rights in other international treaties such as the right to social security found in ICESCR: Although Article 26 requires that legislation should prohibit discrimination, it does not of itself contain any obligation with respect to the matters that may be provided for by legislation. Thus it does not, for example, require any state to enact legislation to provide for social security. However, when such legislation is adopted in the exercise of a State's sovereign power, then such legislation must comply with Article 26 of the Covenant.89

Breaches of the right to equal protection occur directly or indirectly. A classification may be struck down if it has the purpose or effect of violating the right to equal protection. International law recognizes that discrimination may occur indirectly, as the Human Rights Committee90 took into account the definitions of discrimination adopted by CERD and CEDAW in declaring that: . . . "discrimination" as used in the [ICCPR] should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. 91 (emphasis supplied) Thus, the two-tier analysis made in the case at bar of the challenged provision, and its conclusion of unconstitutionality by subsequent operation, are in cadence and in consonance with the progressive trend of other jurisdictions and in international law. There should be no hesitation in using the equal protection clause as a major cutting edge to eliminate every conceivable irrational discrimination in our society. Indeed, the social justice imperatives in the Constitution, coupled with the special status and protection afforded to labor, compel this approach.92 Apropos the special protection afforded to labor under our Constitution and international law, we held in International School Alliance of Educators v. Quisumbing: 93 That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws reflect the policy against these evils. The Constitution in the Article on Social Justice and Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity, reduce social, economic, and political inequalities." The very broad Article 19 of the Civil Code requires every person, "in the exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his due, and observe honesty and good faith."

International law, which springs from general principles of law, likewise proscribes discrimination. General principles of law include principles of equity, i.e., the general principles of fairness and justice, based on the test of what is reasonable. The Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation - all embody the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws. In the workplace, where the relations between capital and labor are often skewed in favor of capital, inequality and discrimination by the employer are all the more reprehensible. The Constitution specifically provides that labor is entitled to "humane conditions of work." These conditions are not restricted to the physical workplace - the factory, the office or the field - but include as well the manner by which employers treat their employees. The Constitution also directs the State to promote "equality of employment opportunities for all." Similarly, the Labor Code provides that the State shall "ensure equal work opportunities regardless of sex, race or creed." It would be an affront to both the spirit and letter of these provisions if the State, in spite of its primordial obligation to promote and ensure equal employment opportunities, closes its eyes to unequal and discriminatory terms and conditions of employment. xxx xxx xxx

Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7 thereof, provides: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and [favorable] conditions of work, which ensure, in particular:

a. Remuneration which provides all workers, as a minimum, with: i. Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; xxx xxx xxx

The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. (citations omitted) Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded recognition and respect by the courts of justice except when they run afoul of the Constitution.94 The deference stops where the classification violates a fundamental right, or prejudices persons accorded special protection by the Constitution. When these violations arise, this Court must discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and more exacting adherence to constitutional limitations. Rational basis should not suffice. Admittedly, the view that prejudice to persons accorded special protection by the Constitution requires a stricter judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive and have been used to support many of our decisions.95 We should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which we cannot come to our own decisions through the employment of our own endowments. We live in a different ambience and must decide our own problems in the light of our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and justice.96 Our laws must be construed in accordance with the intention of our own lawmakers and such intent may be deduced from the language of each law and the

context of other local legislation related thereto. More importantly, they must be construed to serve our own public interest which is the be-all and the end-all of all our laws. And it need not be stressed that our public interest is distinct and different from others.97 In the 2003 case of Francisco v. House of Representatives, this Court has stated that: "[A]merican jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned....[I]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different constitutional settings and needs."98 Indeed, although the Philippine Constitution can trace its origins to that of the United States, their paths of development have long since diverged. 99 Further, the quest for a better and more "equal" world calls for the use of equal protection as a tool of effective judicial intervention. Equality is one ideal which cries out for bold attention and action in the Constitution. The Preamble proclaims "equality" as an ideal precisely in protest against crushing inequities in Philippine society. The command to promote social justice in Article II, Section 10, in "all phases of national development," further explicitated in Article XIII, are clear commands to the State to take affirmative action in the direction of greater equality. [T]here is thus in the Philippine Constitution no lack of doctrinal support for a more vigorous state effort towards achieving a reasonable measure of equality.100 Our present Constitution has gone further in guaranteeing vital social and economic rights to marginalized groups of society, including labor.101 Under the policy of social justice, the law bends over backward to accommodate the interests of the working class on the humane justification that those with less privilege in life should have more in law.102 And the obligation to afford protection to labor is incumbent not only on the legislative and executive branches but also on the judiciary to translate this pledge into a living reality.103 Social justice calls for the humanization of laws and the equalization of social and economic forces by the State so that justice in its

rational and objectively secular conception may at least be approximated.104 V. A Final Word Finally, concerns have been raised as to the propriety of a ruling voiding the challenged provision. It has been proffered that the remedy of petitioner is not with this Court, but with Congress, which alone has the power to erase any inequity perpetrated by R.A. No. 7653. Indeed, a bill proposing the exemption of the BSP rank-and-file from the SSL has supposedly been filed. Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power. Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion would be given deferential treatment. 105 But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict. A weak and watered down view would call for the abdication of this Court's solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines. This is true whether the actor committing the unconstitutional act is a private person or the government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of the character or nature of the actor. 106 Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations - particularly those prescribed or imposed by the Constitution would be set at naught. What is more, the judicial inquiry into such issue and the settlement thereof are the main functions of courts of justice under the Presidential form of government adopted in our 1935 Constitution, and the system of checks and

balances, one of its basic predicates. As a consequence, We have neither the authority nor the discretion to decline passing upon said issue, but are under the ineluctable obligation - made particularly more exacting and peremptory by our oath, as members of the highest Court of the land, to support and defend the Constitution - to settle it. This explains why, in Miller v. Johnson, it was held that courts have a "duty, rather than a power", to determine whether another branch of the government has "kept within constitutional limits." Not satisfied with this postulate, the court went farther and stressed that, if the Constitution provides how it may be amended - as it is in our 1935 Constitution - "then, unless the manner is followed, the judiciary as the interpreter of that constitution, will declare the amendment invalid." In fact, this very Court - speaking through Justice Laurel, an outstanding authority on Philippine Constitutional Law, as well as one of the highly respected and foremost leaders of the Convention that drafted the 1935 Constitution - declared, as early as July 15, 1936, that "(i)n times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments" of the government.107 (citations omitted; emphasis supplied) In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee status. It is akin to a distinction based on economic class and status, with the higher grades as recipients of a benefit specifically withheld from the lower grades. Officers of the BSP now receive higher compensation packages that are competitive with the industry, while the poorer, low-salaried employees are limited to the rates prescribed by the SSL. The implications are quite disturbing: BSP rankand-file employees are paid the strictly regimented rates of the SSL while employees higher in rank - possessing higher and better education and opportunities for career advancement - are given higher compensation packages to entice them to stay. Considering that majority, if not all, the rank-and-file employees consist of people whose status and rank in life are less and limited, especially in terms of job marketability, it is they - and not the officers - who have the real economic and financial

need for the adjustment This is in accord with the policy of the Constitution "to free the people from poverty, provide adequate social services, extend to them a decent standard of living, and improve the quality of life for all."108 Any act of Congress that runs counter to this constitutional desideratum deserves strict scrutiny by this Court before it can pass muster. To be sure, the BSP rank-and-file employees merit greater concern from this Court. They represent the more impotent rank-and-file government employees who, unlike employees in the private sector, have no specific right to organize as a collective bargaining unit and negotiate for better terms and conditions of employment, nor the power to hold a strike to protest unfair labor practices. Not only are they impotent as a labor unit, but their efficacy to lobby in Congress is almost nil as R.A. No. 7653 effectively isolated them from the other GFI rank-and-file in compensation. These BSP rank-and-file employees represent the politically powerless and they should not be compelled to seek a political solution to their unequal and iniquitous treatment. Indeed, they have waited for many years for the legislature to act. They cannot be asked to wait some more for discrimination cannot be given any waiting time. Unless the equal protection clause of the Constitution is a mere platitude, it is the Court's duty to save them from reasonless discrimination. IN VIEW WHEREOF, we hold that the continued operation and implementation of the last proviso of Section 15(c), Article II of Republic Act No. 7653 is unconstitutional. Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Azcuna, Tinga, and Chico-Nazario, JJ., concur. Panganiban, Carpio, Carpio-Morales, and Garcia, JJ., see dissenting. Corona, and Callejo, Sr., JJ., on leave.

CONCURRING OPINION CHICO-NAZARIO, J.: Does Sec. 15(c), Article II, Republic Act No. 6753,1 which allows the exemption of BSP employees occupying salary grade (SG) 20 and above

from the coverage of Rep. Act No. 67582 result in a denial of petitioner's constitutional right to equal protection of the law? I submit that it does and said provision should therefore be declared unconstitutional on the ground that the division between BSP employees covered from SG 19 down and from SG 20 up is purely arbitrary. Even given the wide discretion vested in Congress to make classifications, it is nonetheless clear that the lawmaking body abused its discretion in making such classification. It is not disputed that all that is required for a valid classification is that it must be reasonable, i.e., that it must be based on substantial distinctions which make for real differences; it must be germane to the purpose of the law; it must not be limited to existing conditions and it must apply equally to each member of the class.3 In the instant case, the classification was justified on the need of the BSP to compete in the labor market for economists, accountants, lawyers, experts in security, printing, commercial and rural banking, financial intermediation fund management, and other highly technical and professional personnel,4 which it could not do unless personnel occupying top positions are exempted from the coverage of Rep. Act No. 6758, the Salary Standardization Law. Under Rep. Act No. 6758, however, professional supervisory positions are covered by SG 9 to SG 33 which includes: (R)esponsible positions of a managerial character involving the exercise of management functions such as planning, organizing, directing, coordinating, controlling and overseeing within delegated authority the activities of an organization, a unit thereof or of a group, requiring some degree of professional, technical or scientific knowledge and experience, application of managerial or supervisory skills required to carry out their basic duties and responsibilities involving functional guidance and control, leadership, as well as line supervision. These positions require intense and thorough knowledge of a specialized field usually acquired from completion of a bachelor's degree or higher degree courses.

The positions in this category are assigned Salary Grade 9 to Salary Grade 33.5 (Underscoring supplied) SG 33 is assigned to the President of the Philippines; SG 32 is for the VicePresident, Senate President, Speaker of the House and Chief Justice of this Court. SG 31 is for senators, associate justices of this Court, chairpersons of the constitutional commissions, department secretaries and other positions of equivalent rank while SG 30 is assigned to the constitutional commissioners and other positions of equivalent rank.6 Economists, accountants, lawyers and other highly technical and professional personnel are covered under SG 9 to 29 as already adverted to. Classification in law is the grouping of persons/objects because they agree with one another in certain particulars and differ from others in those same particulars. In the instant case, however, SG 20 and up do not differ from SG 19 and down in terms of technical and professional expertise needed as the entire range of positions all "require intense and thorough knowledge of a specialized field usually acquired from completion of a bachelor's degree or higher courses." Consequently, if BSP needs an exemption from Rep. Act No. 6758 for key positions in order that it may hire the best and brightest economists, accountants, lawyers and other technical and professional people, the exemption must not begin only in SG 20. Under the circumstances, the cut-off point, the great divide, between SG 19 and 20 is entirely arbitrary as it does not have a reasonable or rational foundation. This conclusion finds support in no less than the records of the congressional deliberations, the bicameral conference committee having pegged the cut-off period at SG 20 despite previous discussions in the Senate that the "executive group" is "probably" SG 23 and above.7 Moreover, even assuming that the classification is reasonable, nonetheless, its continued operation will result in hostile discrimination against those occupying grades 19 and below. As pointed out by Mr. Justice Puno, some other government corporations, by law, now exempt all their employees from the coverage of Rep. Act No.

6758. BSP employees occupying SG 19 and below, however, shall remain under Rep. Act No. 6758 considering the rule that the subject classification, to be valid, must not be limited only to conditions existing as of the time the EN BANC

law was passed. Thus, while BSP employees from SG 19 down will continue to be covered under Rep. Act No. 6758, other government employees of the same class and occupying the same positions in government corporations will be exempt. I therefore concur with Justice Puno in that respect and, considering his thorough discussion, I have nothing more to add thereto.

FRANCISCO CHAVEZ, Petitioner,

G.R. No. 168338 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, and LEONARDO-DE CASTRO, JJ. Promulgated: February 15, 2008

- versus -

RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), Respondents.

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

DECISION

PUNO, C.J.: A. Precis

In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it.

Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances meant to curtail this right, as in Adiong v. COMELEC,1 Burgos v. Chief of Staff,2 Social Weather Stations v. COMELEC,3 and Bayan v. Executive Secretary Ermita.4 When on its face, it is clear that a

governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be nullified.

B. The Facts

1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between

the President of the Philippines, Gloria Macapagal Arroyo, and a highranking official of the Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wire-tapping.5 Later, in a Malacaang press briefing, Secretary Bunye produced two versions of the tape, one supposedly the complete version, and the other, a spliced, doctored or altered version, which would suggest that the President had instructed the COMELEC official to manipulate the election results in the Presidents favor.
6

It seems that Secretary Bunye admitted that the voice

was that of President Arroyo, but subsequently made a retraction. 7

2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.8

3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies of the compact disc

(CD) and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was being committed in their presence.9

4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media organizations found to have caused the spread, the playing and the printing of the contents of a tape of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, I [have] asked the NBI to conduct a tactical interrogation of all concerned. 10 5. On June 11, 2005, the NTC issued this press release: 11

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTIWIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS xxx xxx xxx

Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television network owners/operators that the conditions of the authorization and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their] stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession of alleged taped conversations which they claim involve the President of the Philippines and a Commissioner of the COMELEC regarding supposed violation of election laws. These personalities have admitted that the taped conversations are products of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall

be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts. The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators. 6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: 12

NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty. NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression of views. What is being asked by NTC is that the exercise of press freedom [be] done responsibly. KBP has program standards that KBP members will observe in the treatment of news and public affairs programs. These include verification of sources, non-airing of materials that would constitute inciting to sedition and/or rebellion. The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or commentaries. The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to the process being undertaken to verify and validate the authenticity and actual content of the same.

C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul

void proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.13

Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to information on matters of public concern,14 petitioner specifically asked this Court:

[F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present that curtail the publics rights to freedom of expression and of the press, and to information on matters of public concern specifically in relation to information regarding the controversial taped conversion of President Arroyo and for prohibition of the further commission of such acts, and making of such issuances, and orders by respondents. 15 Respondents16 denied that the acts transgress the Constitution, and questioned petitioners legal standing to file the petition. A mong the arguments they raised as to the validity of the fair warning issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTCs mandate to regulate t he

telecommunications industry. 17 It was also stressed that most of the [television] and radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP. 18

D. THE PROCEDURAL THRESHOLD: LEGAL STANDING

To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to free speech, free expression and a free press. For another, the recipients of the press statements have not come forwardneither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent NTC that does not complain about restraints on freedom of the press.

It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions. 19

But as early as half a century ago, we have already held that where serious constitutional questions are involved, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure. 20 Subsequently, this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest,21 in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them.

Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our society,22 we therefore brush aside technicalities of procedure and take cognizance of this petition, 23 seeing as it involves a challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent of the right to information of the public. It is fundamental, however, that we need not address all issues but only the most decisive one which in the case at bar is

whether the acts of the respondents abridge freedom of speech and of the press.

But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and contentbased regulations and their constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between print and broadcast media and stress the standard of review governing both; and (5) to call attention to the ongoing blurring of the lines of distinction between print and broadcast media.

E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH, OF EXPRESSION AND OF THE PRESS No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.24 Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights

codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of Rights,25 were considered the necessary consequence of republican institutions and the complement of free speech.26 This preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all nations.27

In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system. 28 This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom. 29 Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms.30 For it is only when the people

have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.

E.1. ABSTRACTION OF FREE SPEECH

Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom.31 What is embraced under this provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, 32 in which it was held: 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 and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. 33 Gonzales further explained that the vital need of 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.34 As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open. 35

Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence.36 When atrophied, the right becomes meaningless.37 The right belongs as well -- if not more to those who question, who do not conform, who differ.38 The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To

be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.39 To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. 40

The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority.

The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern

Broadcasting Corporation (DYRE) v. Dans,41 this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression.

While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media, as will be subsequently discussed.

E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH

From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, 42 nor is it an unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.

Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order

that it may not be injurious to the equal right of others or those of the community or society.43 The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. 44 We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as fighting words are not entitled to constitutional protection and may be penalized.45 Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been applied differently to each category, either consciously or unconsciously.
46

A study of free speech jurisprudence

whether here or abroadwill reveal that courts have developed different tests as to specific types or categories of speech in concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the traditional print media; libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that affects the right to a fair trial; and speech associated with rights of assembly and petition. 47

Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated; 48 (b) the balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation; 49 and (c) the clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, extremely serious and the degree of imminence extremely high. 50

As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear and present danger test. 51

E.3. IN FOCUS: FREEDOM OF THE PRESS

Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:52

The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear conscience. Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits from certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who

interfere or defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private individuals or public officials.

E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENTNEUTRAL AND CONTENT-BASED REGULATIONS Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; circulation.55 Considering that petitioner has argued that respondents press statement constitutes a form of impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from content-neutral) regulations.
53 54

(3) freedom of access to information;

and (4) freedom of

At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions

on speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the determinations were always about whether the restraint was justified by the Constitution.

Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has always been based on the circumstances of each case, including the nature of the restraint. And in its application in our jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the governmental issuance or act against the circumstances in which they operate, and then determining the appropriate test with which to evaluate.

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.56 Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. 57 Any law or official that requires some form of

permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts.

Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid, 58 and any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows, 59 it is important to stress not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against.

Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech. A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards;60 or (2) a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. 61 The cast

of the restriction determines the test by which the challenged act is assayed with.

When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity. 62 Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approachsomewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions.63 The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner:

A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. 64

On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster,65 with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down.66 With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about especially the gravity and the imminence of the threatened harm otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, but only by showing a substantive and imminent evil that has taken the life of a reality already on ground.67 As formulated, the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.68

The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression. 69

Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. 70 A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. 71 The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken. 72

Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-based regulation,73 however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague.

74

Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are contentbased restrictions. The acts of respondents focused solely on but one objecta specific content fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or expression.

E.5. Dichotomy of Free Press: Print v. Broadcast Media Finally, comes respondents argument that the challenged act is valid on the ground that broadcast media enjoys free speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument, insofar as it has been invoked to validate a content-based restriction on broadcast media.

The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to regulatory schemes.

The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and television have been held to have limited

First Amendment protection,75 and U.S. Courts have excluded broadcast media from the application of the strict scrutiny standard that they would otherwise apply to content-based restrictions.76 According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless]; 77 (b) its pervasiveness as a medium; and (c) its unique accessibility to children.78 Because cases involving broadcast media need not follow precisely the same approach that [U.S. courts] have applied to other media, nor go so far as to demand that such regulations serve compelling government interests,79 they are decided on whether the governmental restriction is narrowly tailored to further a substantial governmental interest,80 or the intermediate test.

As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will show that as we have deviated with the American conception of the Bill of Rights81 we likewise did not adopt en masse the U.S. conception of free speech as it relates to broadcast media, particularly as to which test would govern content-based prior restraints.

Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process.

Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media.

The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans,82 wherein it was

held that [a]ll forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule83

Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of national security. Although the issue had become moot and academic because the owners were no longer interested to reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior courts and bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be considered in cases involving broadcast media. Thus:84

xxx (3)

xxx

xxx

All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule, that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the

Anti-Bases Coalition v. Bagatsing. (4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums. Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others. All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. Similar considerations apply in the area of national security. The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities.

On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance. (5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling. The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection. (6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that. The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound

can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. (7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically declaring that the test for limitations on freedom of expression continues to be the clear and present danger rule, for all forms of media, whether print or broadcast. Indeed, a close reading of the above-quoted provisions would show that the differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise deemed as unprotected speech (e.g., obscenity, national security, seditious and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the limited broadcast frequencies, which is absent in print media. Thus, when this Court declared in Dans that the freedom given to broadcast media was somewhat lesser in scope than the freedom accorded to newspaper and print media, it was not as to what test should be applied, but the context by which requirements of licensing, allocation of airwaves, and application of norms to unprotected speech. 85

In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,86 that the test to determine free expression challenges was the clear and present danger, again without distinguishing the media. 87 Katigbak, strictly speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied to movies,88 the Court concluded its decision with the following obiter dictum that a less liberal approach would be used to resolve obscenity issues in television as opposed to motion pictures: All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely be among the avid viewers of the programs therein shown..It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young. More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast company, we reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that involve freedoms of speech and of the press.89

This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC,90 which also involved broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of advertising of political advertisements because the challenged restriction was content-neutral.91 And in a case involving due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC92 treated a restriction imposed on a broadcast media as a reasonable condition for the grant of the medias franchise, without going into which test would apply.

That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where the statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies, and censorship. As explained by a British author:

The reasons behind treating broadcast and films differently from the print media differ in a number of respects, but have a common historical basis. The stricter system of controls seems to have been adopted in answer to the view that owing to their particular impact on audiences, films, videos and broadcasting require a system of prior restraints, whereas it is now accepted that books and other printed media do not. These media are viewed as beneficial to the public in a number of respects, but are also seen as possible sources of harm.93

Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to provide a rationale. However, cable and satellite television have enormously increased the number of actual and potential channels. Digital technology will further increase the number of channels available. But still, the argument persists that broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free expressionin terms of diversitycomes not from government, but from private corporate bodies. These developments show a need for a reexamination of the traditional notions of the scope and extent of broadcast media regulation. 94

The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the computer industry -- has likewise led to the question of whether the regulatory model for broadcasting will continue to be appropriate in the converged environment.95 Internet, for example, remains largely unregulated, yet the Internet and the broadcast media share similarities, 96 and the

rationales used to support broadcast regulation apply equally to the Internet. 97 Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must agree to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the differential treatment. 98

F. The Case At Bar

Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the case at bar. To recapitulate, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of media, including broadcast media.

This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of evidence necessary. On the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom of speech and of the press failed to hurdle the clear and present danger test. It appears that the great evil which government wants to prevent is the airing of a tape recording in alleged violation

of the anti-wiretapping law. The records of the case at bar, however, are confused and confusing, and respondents evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary

obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a complete version and the other, an altered version. Thirdly, the evidence of the respondents on the whos and the hows of the wiretapping act is ambivalent, especially considering the tapes different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law.

We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a persons private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law . By all means,

violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an act does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press.

There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation.

The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late.

In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the official statements made by respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped conversation between the President and other personalities, for constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press

SO ORDERED. EN BANC

SOCIAL JUSTICE SOCIETY (SJS), Petitioner,

G.R. No. 157870

- versus -

DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), Respondents. x-----------------------------------------------x ATTY. MANUEL J. LASERNA, JR., Petitioner, G.R. No. 158633

- versus -

DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY,

Respondents. x-----------------------------------------------x AQUILINO Q. PIMENTEL, JR., Petitioner, Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, - versus AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, LEONARDO-DE CASTRO, and BRION, JJ. G.R. No. 161658

COMMISSION ON ELECTIONS, Respondent.

Promulgated:

November 3, 2008 x-----------------------------------------------------------------------------------------x DECISION

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutors office with certain offenses, among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing.Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug

used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing: xxxx (c) Students of secondary and tertiary schools.Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the schools student handbook and with notice to the parents, undergo a random drug testing x x x; (d) Officers and employees of public and private offices. Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the companys work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; xxxx (f) All persons charged before the prosecutors office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. resolution read as follows: The pertinent portions of the said

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides: SEC. 36. Authorized Drug Testing.x x x xxxx (g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test. WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency; WHEREAS, by requiring drug test, the public will know electing and they will be assured utmost responsibility, integrity, elected x x x. candidates to undergo mandatory the quality of candidates they are that only those who can serve with loyalty, and efficiency would be

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following

rules and regulations on the conduct of mandatory drug testing to candidates for public office[:] SECTION 1. Coverage.All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health. SEC. 3. x x x On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply x x x. SEC. 4. Preparation and publication of names of candidates. Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. x x x SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate.No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re-election in the May 10, 2004 elections,99 filed a Petition for

Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator.

G.R. No. 157870 (Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a persons constitutional right against unreasonable searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure,

and the right against self-incrimination, and for being contrary to the due process and equal protection guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional rights mentioned in their separate petitions.100

It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy which involves the statute sought to be reviewed.101 But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is

brought before it by a party having the requisite standing to challenge it.102 To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.103

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non-traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest.104 There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165. The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power?

Pimentel Petition (Constitutionality of Sec. 36[g] of RA 9165 and COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4)

age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate,105 or alter or enlarge the Constitution.

Pimentels contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution.106 In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed.107

Congress inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise:

Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap.108

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation.109 The substantive constitutional limitations are chiefly found in the Bill of Rights110 and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.111

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes the chain with the proviso that [n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test. Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug-free bar set up under the challenged provision is to be hurdled before or after election is

really of no moment, as getting elected would be of little value if one cannot assume office for non-compliance with the drug-testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non-compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drugtesting on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever.

While it is anti-climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator.

SJS Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs. This

statutory purpose, per the policy-declaration portion of the law, can be achieved via the pursuit by the state of an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti-drug abuse policies, programs and projects.112 The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability

should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation.A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x. xxxx Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program.A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions: xxxx

School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.113

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure114 under Sec. 2, Art. III115 of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state-decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County , et al. v. Earls, et al. (Board of Education),116 both fairly pertinent US Supreme Courtdecided cases involving the constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the schools athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the schools drug testing policy violated, inter alia, the Fourth Amendment117 of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than nonathletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a students privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth118 and 14th Amendments and

declared the random drug-testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extracurricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drugtesting policy made to apply to non-athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non-athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non-athletes on the basis of the schools custodial responsibility and authority. In so ruling, said court made no distinction between a non-athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug-testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer

rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and nondiscriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well-being of the people,119 particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from

Vernonia, [d]eterring drug use by our Nations schoolchildren is as important as enhancing efficient enforcement of the Nations laws against the importation of drugs; the necessity for the State to act is magnified by the fact that the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty.120 Needless to stress, the random testing scheme

provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,121 has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution.122 Petitioner Lasernas lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizens constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.123

The essence of privacy is the right to be left alone.124 In context, the right to privacy means the right to be free from unwarranted exploitation of ones person or from intrusion into ones private activities in such a way as to cause humiliation to a persons ordinary sensibilities. 125 And while there has been general agreement as to the basic function of the guarantee against unwarranted search, translation of the abstract prohibition against unreasonable searches and seizures into workable broad guidelines for the decision of particular cases is a difficult task, to borrow from C. Camara v. Municipal Court.126 Authorities are agreed though that the

right to privacy yields to certain paramount rights of the public and defers to the states exercise of police power.127

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, reasonableness is the touchstone of the validity of a government search or intrusion.128 And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government-mandated intrusion on the individuals privacy interest against the promotion of some compelling state interest.129 In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug-testing policy for employeesand students for that matterunder RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as swift and informal disciplinary procedures, the probable -cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees privacy interest in an office is to a large extent circumscribed by the companys work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search narrowly drawn or narrowly focused?130

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed

forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to random drug test as contained in the companys work rules and regulations x x x for purposes of reducing the risk in the work place.

For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employees privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access-controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.131 In addition, the IRR issued by the DOH provides that access to the drug results shall be on the need to know basis;132 that the drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results.133 Notably, RA 9165

does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well-being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test.134 To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individuals privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social- economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investors dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern-day scourge. Drug enforcement agencies

perceive a mandatory random drug test to be an effective way of preventing and

deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional.

Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service.135 And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.136

Petitioner SJS next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the companys work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional landscape.137 In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutors office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are randomness and suspicionless. In the case of persons charged w ith a crime before the prosecutors office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutors office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.138 To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All

concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

EN BANC

G.R. No. 164785

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ELISEO F. SORIANO, Petitioner, versus MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and Television Review and Classification Board, MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL and ROLDAN A. GAVINO, Respondents. ELISEO F. SORIANO, Petitioner, versus MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as members of the Hearing and Adjudication Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL and

G.R. No. 165636

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ROLDAN A. GAVINO, in their capacity as complainants before the MTRCB, Respondents. Promulgated: March 15, 2010 x ---------------------------------------------------------------------------------------- x DISSENTING OPINION ABAD, J.: I am submitting this dissent to the ably written ponencia of Justice Presbiterio J. Velasco, Jr. that seeks to deny the petitioners motion for reconsideration of the Courts decision in the case. Brief Antecedent Petitioner Eliseo F. Soriano, a television evangelist, hosted the Ang Dating Daan, a popular television ministry aired nationwide everyday from 10:00 p.m. to midnight over public television. The program carried a general patronage rating from the Movie and Television Review and Classification Board (MTRCB). The Ang Dating Daans rivalry with another religious television program, the Iglesia ni Cristos Ang Tamang Daan, is well known. The hosts of the two shows have regularly engaged in verbal sparring on air, hurling accusations and counter-accusations with respect to their opposing religious beliefs and practices. It appears that in his program Ang Tamang Daan, Michael M. Sandoval (Michael) of the Iglesia ni Cristo attacked petitioner Soriano of the Ang Dating Daan for alleged inconsistencies in his Bible teachings. Michael compared spliced recordings of Sorianos statements, matched with subtitles of his utterances, to demonstrate those inconsistencies. On August 10, 2004, in an apparent reaction to what he perceived as a malicious attack against him by the rival television program, Soriano accused Michael of prostituting himself with his fabricated presentations. Thus: .gago ka talaga Michael. Masahol ka pa sa putang babae. O di ba? Yung putang babae ang gumagana lang doon yung ibaba, kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa

putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng demonyong ito Michael and seven other ministers of the Iglesia ni Cristo lodged a complaint against petitioner Soriano before the MTRCB. Acting swiftly, the latter preventively suspended the airing of Sorianos Ang Dating Daan television program for 20 days, pursuant to its powers under Section 3(d) of Presidential Decree 1986139 and its related rules. Petitioner Soriano challenged the validity of that preventive suspension before this Court in G.R. 164785. Meanwhile, after hearing the main case or on September 27, 2004, the MTRCB found Soriano guilty as charged and imposed on him a penalty of three months suspension from appearing on the Ang Dating Daan program. Soriano thus filed a second petition in G.R. 165636 to question that decision. The Court consolidated the two cases. On April 29, 2009 the Court rendered a d ecision, upholding MTRCBs power to impose preventive suspension and affirming its decision against petitioner Soriano with the modification of applying the three-month suspension to the program And Dating Daan, rather than to Soriano. Issue Presented This dissenting opinion presents a narrow issue: whether or not the Court is justified in imposing the penalty of three-month suspension on the television program Ang Dating Daan on the ground of host petitioner Sorianos remarks about Iglesia ni Cristos Michael prostituting himself when he attacked Soriano in the Iglesias own television program. The Dissent The Ang Dating Daan is a nationwide television ministry of a church organization officially known as Members of the Church of God International headed by petitioner Soriano. It is a vast religious movement not so far from those of Mike Velardes El Shadai, Eddie Villanuevas Jesus is Lord, and Apollo Quiboloys The Kingdom of Jesus Christ. These movements have generated such tremendous following that they have been able to sustain daily television and radio programs that reach out to their members and followers all over the country. Some
139

Creating the Movie and Television Review and Classification Board.

of their programs are broadcast abroad. Ang Dating Daan is aired in the United States and Canada. The Catholic Church is of course the largest religious organization in the Philippines. If its members get their spiritual nourishments from attending masses or novenas in their local churches, those of petitioner Sorianos church tune in every night to listen to his televised Bible teachings and how these teachings apply to their lives. They hardly have places of worship like the Catholic Church or the mainstream protestant movements. Thus, suspending the Ang Dating Daan television program is the equivalent of closing down their churches to its followers. Their inability to tune in on their Bible teaching program in the evening is for them like going to church on Sunday morning, only to find its doors and windows heavily barred. Inside, the halls are empty. Do they deserve this? No. 1. A tiny moment of lost temper. Petitioner Sorianos Bible ministry has been on television continuously for 27 years since 1983 with no prior record of use of foul language. For a 15-second outburst of its head at his bitterest critics, it seems not fair for the Court to close down this Bible ministry to its large followers altogether for a full quarter of a year. It is like cutting the leg to cure a smelly foot. 2. Not obscene. Primarily, it is obscenity on television that the constitutional guarantee of freedom of speech does not protect. As the Courts decision points out, the test of obscenity is whether the average person, applying contemporary standards, would find the speech, taken as a whole, appeals to the prurient interest. A thing is prurient when it arouses lascivious thoughts or desires140 or tends to arouse sexual desire.141

140 141

Websters Third New International Dictionary, p. 1829. Id. at 1274.

A quarter-of-a-year suspension would probably be justified when a general patronage program intentionally sneaks in snippets of lewd, prurient materials to attract an audience to the program. This has not been the case here.

3. Merely borders on indecent. Actually, the Court concedes that petitioner Sorianos short outburst was not in the category of the obscene. It was just indecent. But were his words and their meaning utterly indecent? In a scale of 10, did he use the grossest language? He did not. First, Soriano actually exercised some restraints in the sense that he did not use the vernacular word for the female sexual organ when referring to it, which word even the published opinions of the Court avoided despite its adult readers. He referred to it as yung ibaba or down below. And, instead of using the patently offensive vernacular equivalent of the word fuck that describes the sexual act in which the prostitute engages herself, he instead used the word gumagana lang doon yung ibaba or what functions is only down below. At most, his utterance merely bordered on the indecent. Second, the word puta or prostitute describes a bad trade but it is not a bad word. The world needs a word to describe it. Evil is bad but the word evil is not; the use of the words puta or evil helps people understand the values that compete in this world. A policy that places these ordinary descriptive words beyond the hearing of children is unrealistic and is based on groundless fear. Surely no member of the Court will recall that when yet a child his or her hearing the word puta for the first time left him or her wounded for life. Third, Soriano did not tell his viewers that being a prostitute was good. He did not praise prostitutes as to make them attractive models to his listeners. Indeed, he condemned Michael for acting like a prostitute in attacking him on the air. The trouble is that the Court, like the MTRCB read his few lines in isolation. Actually, from the larger picture, Soriano appears to have been provoked by Michaels resort to splicing his speeches and making it appear that he had tau ght inconsistent and false doctrines to his listeners. If Michaels sin were true, Soriano was simply defending himself with justified anger.

And fourth, the Court appears to have given a literal meaning to what Soriano said. Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! This was a figure of speech. Michael was a man, so he could not literally be a female prostitute. Its real meaning is that Michael was acting like a prostitute in mouthing the ideas of anyone who cared to pay him for such service. It had no indecent meaning. The Bible itself uses the word prostitute as a figure of speech. By their deeds they prostituted themselves, said Psalm 106:39 of the Israelites who continued to worship idols after God had taken them out of Egyptian slavery.142 Sorianos real message is that Michael prostituted himself by his calumny against him. If at all, petitioner Sorianos breach of the rule of decency is slight, one on a scale of 10. Still, the Court would deprive the Ang Dating Daan followers of their nightly bible teachings for a quarter of a year because their head teacher had used figures of speech to make his message vivid. 4. The average child as listener The Court claims that, since Ang Dating Daan carried a general patronage rating, Sorianos speech no doubt caused harm to the children who watched the show. This statement is much too sweeping. The Court relies on the United States case of Federal Communications Commission (FCC) v. Pacifica Foundation,143 a 1978 landmark case. Here are snatches of the challenged monologue that was aired on radio: The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and maybe, even bring us, God help us, peace without honor and bourbonAlso cocksucker is a compound word and neither half of that is really dirtyAnd the cock crowed three times, the cockthree times.
142

New International Version (North American Edition); see other biblical passages that use prostitute as a figure of speech: Judges 2:17; 8:27; 8:33; 1Chronicles 5:25; and Leviticus 20:5. 143 438 U.S. 726.

Its in the Bible, cock in the BibleHot shit, holy shit, tough shit, eat shit, shit-eating grinIts a great word, fuck, nice word, easy word, cute word, kind of. Easy word to say. One syllable, short u. FuckA little something for everyone. Fuck. Good word. x x x Imagine how the above would sound if translated into any of the Filipino vernaculars. The U.S. Supreme Court held that the above is not protected speech and that the FCC could regulate its airing on radio. The U.S. Supreme Court was of course correct. Here, however, there is no question that Soriano attacked Michael, using figure of speech, at past 10:00 in the evening, not at 2:00 in the afternoon. The average Filipino child would have been long in bed by the time Ang Dating Daan appeared on the television screen. What is more, Bible teaching and interpretation is not the stuff of kids. It is not likely that they would give up programs of interest to them just to listen to Soriano drawing a distinction between faith and work or action. The Court has stretched the child angle beyond realistic proportions. The MTRCB probably gave the program a general patronage rating simply because Ang Dating Daan had never before been involved in any questionable broadcast in the previous 27 years that it had been on the air. The monologue in the FCC case that was broadcast at 2 in the afternoon was pure indecent and gross language, uttered for its own sake with no social value at all. It cannot compare to Sorianos speech where the indecent words were slig ht and spoken as mere figure of speech to defend himself from what he perceived as malicious criticism. 5. Disproportionate penalty The Court applied the balancing of interest test in justifying the imposition of the penalty of suspension against Ang Dating Daan. Under this test, when particular conduct is regulated in the interest of public order and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. An example of this is where an ordinance prohibits the making of loud noises from 9:00 p.m. to 6:00 a.m. Can this ordinance be applied to prevent vehicles circling the neighborhood at such hours of night, playing campaign jingles on their loudspeakers to win votes for candidates in the election? Here, there is a

tension between the rights of candidates to address their constituents and the interest of the people in healthy undisturbed sleep. The Court would probably uphold the ordinance since public interest demands a quiet nights rest for all and since the restraint on the freedom of speech is indirect, conditional, and partial. The candidate is free to make his broadcast during daytime when people are normally awake and can appreciate what he is saying. But here, the abridgment of speechthree months total suspension of the Ang Dating Daan television bible teaching programcannot be regarded as indirect, conditional, or partial. It is a direct, unconditional, and total abridgment of the freedom of speech, to which a religious organization is entitled, for a whole quarter of a year. In the American case of FCC, a parent complained. He was riding with his son in the car at 2:00 in the afternoon and they heard the grossly indecent monologue on radio. Here, no parent has in fact come forward with a complaint that his child had heard petitioner Sorianos speech and was harmed by it. The Court cannot pretend that this is a case of angry or agitated parents against Ang Dating Daan. The complaint here came from Iglesia ni Cristo preachers and members who deeply loathed Soriano and his church. The Courts decision will not be a victory for the children but for the Iglesia ni Cristo, finally enabling it to silence an abhorred competing religious belief and its practices. What is more, since this case is about protecting children, the more appropriate penalty, if Sorianos speech during the program mentioned was indecent and had offended them, is to raise his programs restriction classification. The MTRCB classify programs to protect vulnerable audiences. It can change the present G or General Patronage classification of Ang Dating Daan to PG or with Parental Guidance only for three months. This can come with a warning that should the program commit the same violation, the MTRCB can make the new classification permanent or, if the violation is recurring, cancel its programs permit. This has precedent. In Gonzales v. Katigbak,144 the Court did not ban the motion picture just because there were suggestive scenes in it that were not fit for children. It simply classified the picture as for adults only. By doing this, the Court would not be cutting the leg to cure a smelly foot.

144

222 Phil. 225 (1985).

I vote to partially grant the motion for reconsideration by modifying the three-month suspension penalty imposed on the program Ang Dating Daan. In its place, I vote to raise the programs restriction classification from G or General Patronage to PG or with Parental Guidance for three months with warning that should petitioner Soriano commit the same violation, the classification of his program will be permanently changed or, if the violation is persistent, the program will be altogether cancelled.

ROBERTO A. ABAD Associate Justice Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 122846 January 20, 2009

WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & DEVELOPMENT CORPORATION, Petitioners, vs. CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent. DECISION Tinga, J.: With another city ordinance of Manila also principally involving the tourist district as subject, the Court is confronted anew with the incessant clash between government power and individual liberty in tandem with the archetypal tension between law and morality. In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city ordinance barring the operation of motels and inns, among other establishments, within the Ermita-Malate area. The petition at bar assails a

similarly-motivated city ordinance that prohibits those same establishments from offering short-time admission, as well as pro-rated or "wash up" rates for such abbreviated stays. Our earlier decision tested the city ordinance against our sacred constitutional rights to liberty, due process and equal protection of law. The same parameters apply to the present petition. This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of the Decision3 in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila City Ordinance No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila" (the Ordinance). I. The facts are as follows: On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance.4 The Ordinance is reproduced in full, hereunder: SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect the best interest, health and welfare, and the morality of its constituents in general and the youth in particular. SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time admission in hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila. SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and similar establishments in the City of Manila. SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or any other term that may be concocted by owners or managers of said establishments but would mean the same or would bear the same meaning.

SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance shall upon conviction thereof be punished by a fine of Five Thousand (P5,000.00) Pesos or imprisonment for a period of not exceeding one (1) year or both such fine and imprisonment at the discretion of the court; Provided, That in case of [a] juridical person, the president, the manager, or the persons in charge of the operation thereof shall be liable: Provided, further, That in case of subsequent conviction for the same offense, the business license of the guilty party shall automatically be cancelled. SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to this measure or any portion hereof are hereby deemed repealed. SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval. Enacted by the city Council of Manila at its regular session today, November 10, 1992. Approved by His Honor, the Mayor on December 3, 1992. On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order ( TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein respondent City of Manila (the City) represented by Mayor Lim.6 MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as well as to charge customers wash up rates for stays of only three hours. On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit attached complaint-in-intervention7 on the ground that the Ordinance directly affects their business interests as operators of drive-in-hotels and motels in Manila.8 The three companies are components of the Anito Group of

Companies which owns and operates several hotels and motels in Metro Manila.9 On December 23, 1992, the RTC granted the motion to intervene.10 The RTC also notified the Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On the same date, MTDC moved to withdraw as plaintiff.11 On December 28, 1992, the RTC granted MTDC's motion to withdraw.12 The RTC issued a TRO on January 14, 1993, directing the City to cease and desist from enforcing the Ordinance.13 The City filed an Answer dated January 22, 1993 alleging that the Ordinance is a legitimate exercise of police power.14 On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from the enforcement of the Ordinance.15 A month later, on March 8, 1993, the Solicitor General filed his Comment arguing that the Ordinance is constitutional. During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision without trial as the case involved a purely legal question.16 On October 20, 1993, the RTC rendered a decision declaring the Ordinance null and void. The dispositive portion of the decision reads: WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby declared null and void. Accordingly, the preliminary injunction heretofor issued is hereby made permanent. SO ORDERED.17 The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed and jealously guarded by the Constitution."18 Reference was made to the provisions of the Constitution encouraging private enterprises and the incentive to needed investment, as well as the right to operate economic enterprises. Finally, from the observation that the illicit relationships the Ordinance sought to dissuade could nonetheless be consummated by simply paying for a 12-hour stay, the RTC likened the law to the ordinance annulled in Ynot v. Intermediate Appellate Court,19 where the legitimate purpose of preventing indiscriminate slaughter of carabaos

was sought to be effected through an inter-province ban on the transport of carabaos and carabeef. The City later filed a petition for review on certiorari with the Supreme Court.20 The petition was docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court treated the petition as a petition for certiorari and referred the petition to the Court of Appeals.21 Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities, among other local government units, the power: [To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses and other similar establishments, including tourist guides and transports.22 The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section 18(kk) of the Revised Manila Charter, thus: "to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity and the promotion of the morality, peace, good order, comfort, convenience and general welfare of the city and its inhabitants, and such others as be necessary to carry into effect and discharge the powers and duties conferred by this Chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred pesos fine or six months imprisonment, or both such fine and imprisonment for a single offense.23 Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy and the freedom of movement; it is an invalid exercise of police power; and it is an unreasonable and oppressive interference in their business. The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the Ordinance.24 First, it held that the Ordinance did not violate the right to privacy or the freedom of movement, as it only penalizes the owners or operators of establishments that admit individuals for short time stays. Second, the virtually limitless reach of police power is only constrained by having a lawful object obtained through a lawful method.

The lawful objective of the Ordinance is satisfied since it aims to curb immoral activities. There is a lawful method since the establishments are still allowed to operate. Third, the adverse effect on the establishments is justified by the well-being of its constituents in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor of Manila, liberty is regulated by law. TC, WLC and STDC come to this Court via petition for review on certiorari.25 In their petition and Memorandum, petitioners in essence repeat the assertions they made before the Court of Appeals. They contend that the assailed Ordinance is an invalid exercise of police power. II. We must address the threshold issue of petitioners standing. Petitioners allege that as owners of establishments offering "wash-up" rates, their business is being unlawfully interfered with by the Ordinance. However, petitioners also allege that the equal protection rights of their clients are also being interfered with. Thus, the crux of the matter is whether or not these establishments have the requisite standing to plead for protection of their patrons' equal protection rights. Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. More importantly, the doctrine of standing is built on the principle of separation of powers,26 sparing as it does unnecessary interference or invalidation by the judicial branch of the actions rendered by its co-equal branches of government. The requirement of standing is a core component of the judicial system derived directly from the Constitution.27 The constitutional component of standing doctrine incorporates concepts which concededly are not susceptible of precise definition.28 In this jurisdiction, the extancy of "a direct and personal interest" presents the most obvious cause, as well as the standard test for a petitioner's standing.29 In a similar vein, the United States Supreme Court reviewed and elaborated on the meaning of the three constitutional standing requirements of injury, causation, and redressability in Allen v. Wright.30

Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance.31 For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine are appropriate. In Powers v. Ohio,32 the United States Supreme Court wrote that: "We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an injury-infact, thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party's ability to protect his or her own interests."33 Herein, it is clear that the business interests of the petitioners are likewise injured by the Ordinance. They rely on the patronage of their customers for their continued viability which appears to be threatened by the enforcement of the Ordinance. The relative silence in constitutional litigation of such special interest groups in our nation such as the American Civil Liberties Union in the United States may also be construed as a hindrance for customers to bring suit.34 American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate or invoke the fundamental due process or equal protection claims of other persons or classes of persons injured by state action. In Griswold v. Connecticut,35 the United States Supreme Court held that physicians had standing to challenge a reproductive health statute that would penalize them as accessories as well as to plead the constitutional protections available to their patients. The Court held that: "The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them."36 An even more analogous example may be found in Craig v. Boren,37 wherein the United States Supreme Court held that a licensed beverage vendor has standing to raise the equal protection claim of a male customer challenging a statutory scheme prohibiting the sale of beer to males under the age of 21 and to females under the age of 18. The United States High Court explained that the vendors had standing "by acting as advocates of the rights of third parties who seek access to their market or function."38

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights.39 In this case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see that based on the allegations in the petition, the Ordinance suffers from overbreadth. We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize their establishments for a "wash-rate" time frame. III. To students of jurisprudence, the facts of this case will recall to mind not only the recent City of Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila.40 Ermita-Malate concerned the City ordinance requiring patrons to fill up a prescribed form stating personal information such as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance in Ermita-Malate was sustained by the Court. The common thread that runs through those decisions and the case at bar goes beyond the singularity of the localities covered under the respective ordinances. All three ordinances were enacted with a view of regulating public morals including particular illicit activity in transient lodging establishments. This could be described as the middle case, wherein there is no wholesale ban on motels and hotels but the services offered by these establishments have been severely restricted. At its core, this is another case about the extent to which the State can intrude into and regulate the lives of its citizens.

The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable.41 The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and renting out a room more than twice a day. The ban is evidently sought to be rooted in the police power as conferred on local government units by the Local Government Code through such implements as the general welfare clause. A. Police power, while incapable of an exact definition, has been purposely veiled in general terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response as the conditions warrant.42 Police power is based upon the concept of necessity of the State and its corresponding right to protect itself and its people.43 Police power has been used as justification for numerous and varied actions by the State. These range from the regulation of dance halls,44 movie theaters,45 gas stations46 and cockpits.47 The awesome scope of police power is best demonstrated by the fact that in its hundred or so years of presence in our nations legal system, its use has rarely been denied. The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their achievement. Those means must align with the Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political majorities animated by his cynicism.

Even as we design the precedents that establish the framework for analysis of due process or equal protection questions, the courts are naturally inhibited by a due deference to the co-equal branches of government as they exercise their political functions. But when we are compelled to nullify executive or legislative actions, yet another form of caution emerges. If the Court were animated by the same passing fancies or turbulent emotions that motivate many political decisions, judicial integrity is compromised by any perception that the judiciary is merely the third political branch of government. We derive our respect and good standing in the annals of history by acting as judicious and neutral arbiters of the rule of law, and there is no surer way to that end than through the development of rigorous and sophisticated legal standards through which the courts analyze the most fundamental and far-reaching constitutional questions of the day. B. The primary constitutional question that confronts us is one of due process, as guaranteed under Section 1, Article III of the Constitution. Due process evades a precise definition.48 The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned. The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government, "procedural due process" and "substantive due process." Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property.49 Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. Examples range from the form of notice given to the level of formality of a hearing. If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed. Substantive due process completes the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property.50

The question of substantive due process, moreso than most other fields of law, has reflected dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of analysis before it can be upheld. The vitality though of constitutional due process has not been predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process clause has acquired potency because of the sophisticated methodology that has emerged to determine the proper metes and bounds for its application. C. The general test of the validity of an ordinance on substantive due process grounds is best tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products.51 Footnote 4 of the Carolene Products case acknowledged that the judiciary would defer to the legislature unless there is a discrimination against a "discrete and insular" minority or infringement of a "fundamental right."52 Consequently, two standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or restricting the political process, and the rational basis standard of review for economic legislation. A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications based on gender53 and legitimacy.54 Immediate scrutiny was adopted by the U.S. Supreme Court in Craig,55 after the Court declined to do so in Reed v. Reed.56 While the test may have first been articulated in equal protection analysis, it has in the United States since been applied in all substantive due process cases as well. We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges.57 Using the rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental interest.58 Under intermediate review, governmental interest is extensively examined and the availability of less restrictive measures is considered.59 Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest.

In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms.60 Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection.61 The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage,62 judicial access63 and interstate travel.64 If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only on the petitioners at bar, then it would seem that the only restraint imposed by the law which we are capacitated to act upon is the injury to property sustained by the petitioners, an injury that would warrant the application of the most deferential standard the rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners to invoke as well the constitutional rights of their patrons those persons who would be deprived of availing short time access or wash-up rates to the lodging establishments in question. Viewed cynically, one might say that the infringed rights of these customers were are trivial since they seem shorn of political consequence. Concededly, these are not the sort of cherished rights that, when proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights does not shelter gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms which the people reflexively exercise any day without the impairing awareness of their constitutional consequence that accurately reflect the degree of liberty enjoyed by the people. Liberty, as integrally incorporated as a fundamental right in the Constitution, is not a Ten Commandments-style enumeration of what may or what may not be done; but rather an atmosphere of freedom where the people do not feel labored under a Big Brother presence as they interact with each other, their society and nature, in a manner innately understood by them as inherent, without doing harm or injury to others. D. The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus:

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare."[ 65] In accordance with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty.[66] The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of "liberty." It said: While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed.67 [Citations omitted] It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual behavior. The City asserts before this Court that the subject establishments "have gained notoriety as venue of prostitution, adultery and fornications in Manila since they provide the necessary atmosphere for clandestine entry, presence and exit and thus became the ideal haven for prostitutes and thrill-seekers."68 Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting single adults which is constitutionally protected69 will be curtailed as well, as it was in the City of Manila case. Our holding therein retains significance for our purposes: The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect. As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated:

Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of that experience personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a master of himself. I cannot believe that a man no longer a master of himself is in any real sense free. Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of certain intrusions into the personal life of the citizen.70 We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in their homes. In transit passengers who wish to wash up and rest between trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of comfortable private spaces for a span of a few hours with purposes other than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative. E. That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power measure. It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights.71 It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist

between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.72 Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial review when life, liberty or property is affected.73 However, this is not in any way meant to take it away from the vastness of State police power whose exercise enjoys the presumption of validity.74 Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates, this Ordinance is a blunt and heavy instrument.75 The Ordinance makes no distinction between places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. A plain reading of section 3 of the Ordinance shows it makes no classification of places of lodging, thus deems them all susceptible to illicit patronage and subject them without exception to the unjustified prohibition. The Court has professed its deep sentiment and tenderness of the ErmitaMalate area, its longtime home,76 and it is skeptical of those who wish to depict our capital city the Pearl of the Orient as a modern-day Sodom or Gomorrah for the Third World set. Those still steeped in Nick Joaquindreams of the grandeur of Old Manila will have to accept that Manila like all evolving big cities, will have its problems. Urban decay is a fact of mega cities such as Manila, and vice is a common problem confronted by the modern metropolis wherever in the world. The solution to such perceived decay is not to prevent legitimate businesses from offering a legitimate product. Rather, cities revive themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of individuals that would bring a new grandeur to Manila. The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and

regulations penalizing prostitution and drug use. These measures would have minimal intrusion on the businesses of the petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in fact collect "wash rates" from their clientele by charging their customers a portion of the rent for motel rooms and even apartments. IV. We reiterate that individual rights may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. The State is a leviathan that must be restrained from needlessly intruding into the lives of its citizens. However wellintentioned the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions. The promotion of public welfare and a sense of morality among citizens deserves the full endorsement of the judiciary provided that such measures do not trample rights this Court is sworn to protect.77 The notion that the promotion of public morality is a function of the State is as old as Aristotle.78 The advancement of moral relativism as a school of philosophy does not de-legitimize the role of morality in law, even if it may foster wider debate on which particular behavior to penalize. It is conceivable that a society with relatively little shared morality among its citizens could be functional so long as the pursuit of sharply variant moral perspectives yields an adequate accommodation of different interests.79 To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more accurately interpreted as meaning that efforts to legislate morality will fail if they are widely at variance with public attitudes about right and wrong.80 Our penal laws, for one, are founded on age-old moral traditions, and as long as there are

widely accepted distinctions between right and wrong, they will remain so oriented. Yet the continuing progression of the human story has seen not only the acceptance of the right-wrong distinction, but also the advent of fundamental liberties as the key to the enjoyment of life to the fullest. Our democracy is distinguished from non-free societies not with any more extensive elaboration on our part of what is moral and immoral, but from our recognition that the individual liberty to make the choices in our lives is innate, and protected by the State. Independent and fair-minded judges themselves are under a moral duty to uphold the Constitution as the embodiment of the rule of law, by reason of their expression of consent to do so when they take the oath of office, and because they are entrusted by the people to uphold the law.81 Even as the implementation of moral norms remains an indispensable complement to governance, that prerogative is hardly absolute, especially in the face of the norms of due process of liberty. And while the tension may often be left to the courts to relieve, it is possible for the government to avoid the constitutional conflict by employing more judicious, less drastic means to promote morality. WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and the Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL. No pronouncement as to costs. SO ORDERED. DANTE O. TINGA Associate Justice WE CONCUR:

SECOND DIVISION

NEWSOUNDS BROADCASTING NETWORK INC. and CONSOLIDATED BROADCASTING SYSTEM, INC., Petitioners,

G.R. Nos. 170270 & 179411

Present:

QUISUMBING, - versus Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and HON. CEASAR G. DY, FELICISIMO G. MEER, BAGNOS MAXIMO, RACMA FERNANDEZ-GARCIA and THE CITY OF CAUAYAN, Respondents. Promulgated: PERALTA, JJ.*

April 2, 2009

Additional member as replacement of Justice Arturo D. Brion who is on official leave per Special Order

No. 587.

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

DECISION

TINGA, J.:

Whenever the force of government or any of its political subdivisions bears upon to close down a private broadcasting station, the issue of free speech infringement cannot be minimized, no matter the legal justifications offered for the closure. In many respects, the present petitions offer a textbook example of how the constitutional guarantee of freedom of speech, expression and of the press may be unlawfully compromised. Tragically, the lower courts involved in this case failed to recognize or assert the fundamental dimensions, and it is our duty to reverse, and to affirm the Constitution and the most sacred rights it guarantees.

Before us are two petitions for review involving the same parties, the cases having been consolidated by virtue of the Resolution of this Court dated 16 June 2008.145 Both petitions emanated from a petition for mandamus146 filed with the

145

Rollo (G.R. No. 179411) pp. 1351-1352.

Regional Trial Court (RTC) of Cauayan City docketed as Special Civil Action No. Br. 20-171, the petition having been dismissed in a Decision dated 14 September 2004 by the Cauayan City RTC, Branch 20.147 Consequently, petitioners filed with the Court of Appeals a petition for certiorari under Rule 65 and an appeal to the RTC decision. The appellate court ruled against petitioners in both instances. The petition in G.R. No. 170270 assails the 27 October 2005 decision of the Court of Appeals in CA-G.R. SP No. 87815,148 while the petition in G.R. 179411 assails the 30 May 2007 decision of the Court of Appeals in C.A.-G.R. SP No. 88283.149

I.

Bombo Radyo Philippines (Bombo Radyo) operates several radio stations under the AM and FM band throughout the Philippines. These stations are operated by corporations organized and incorporated by Bombo Radyo, particularly petitioners Newsounds Broadcasting Network, Inc. (Newsounds) and Consolidated Broadcasting System, Inc. (CBS). Among the stations run by Newsounds is Bombo Radyo DZNC Cauayan (DZNC), an AM radio broadcast station operating out of Cauayan City, Isabela. CBS, in turn, runs Star FM DWIT Cauayan (Star FM), also operating out of Cauayan City, airing on the FM band.
146

Id. at 166-190. Id. at 296-302. Decision penned by Judge Henedino P. Eduarte.

147

Id. at 636-662. Decision penned by Court of Appeals Associate Justice E. Sundiam, concurred in by Associate Justice M. Villarama, Jr. and J. Dimaampao. Decision penned by Court of Appeals Associate Justice F. Lampas Peralta and concurred in by Associate Justices E. Cruz and N. Pizarro.
149

148

The service areas of DZNC and Star FM extend from the province of Isabela to throughout Region II and the Cordillera region.150

In 1996, Newsounds commenced relocation of its broadcasting stations, management office and transmitters on property located in Minante 2, Cauayan City, Isabela. The property is owned by CBS Development Corporation (CDC), an affiliate corporation under the Bombo Radyo network which holds title over the properties used by Bombo Radyo stations throughout the country.151 On 28 June 1996, CDC was issued by the then municipal government of Cauayan a building permit authorizing the construction of a commercial establishment on the property.152 On 5 July 1996, the Housing and Land Use Regulatory Board (HLURB) issued a Zoning Decision certifying the property as commercial.153 That same day, the Office of the Municipal Planning and Development Coordinator (OMPDC) of Cauayan affirmed that the commercial structure to be constructed by CDC conformed to local zoning regulations, noting as well that the location is classified as a Commercial area.154 Similar certifications would be issued by OMPDC from 1997 to 2001.155

150

Rollo (G.R. No. 179411), p. 13. Id. Id. at 90. Id. at 91. Id. at 92. Id. at 93-97.

151

152

153

154

155

A building was consequently erected on the property, and therefrom, DZNC and Star FM operated as radio stations. Both stations successfully secured all necessary operating documents, including mayors permits from 1997 to 2001.156 During that period, CDC paid real property taxes on the property based on the classification of the land as commercial.157

All that changed beginning in 2002. On 15 January of that year, petitioners applied for the renewal of the mayors permit. The following day, the City Assessors Office in Cauayan City noted on CDCs Declaration of Real Property filed for 2002 confirmed that based on the existing file, CDCs property was classified as commercial.158 On 28 January, representatives of petitioners formally requested then City Zoning Administrator-Designate Bagnos Maximo (Maximo) to issue a zoning clearance for the property.159 Maximo, however, required petitioners to submit either an approved land conversion papers from the Department of Agrarian Reform (DAR) showing that the property was converted from prime agricultural land to commercial land, or an approved resolution from the Sangguniang Bayan or Sangguniang Panglungsod authorizing the re-classification of the property from agricultural to commercial land.160 Petitioners had never been required to submit such papers before, and from 1996
156

Id. at 98-102. Id. at 103-110. Id. at 103. Id. at 111.

157

158

159

160

Id. at 18-19.

to 2001, the OMPDC had consistently certified that the property had been classified as commercial.

Due to this refusal by Maximo to issue the zoning clearance, petitioners were unable to secure a mayors permit. Petitioners filed a petition for mandamus161 with the Regional Trial Court (RTC) of Cauayan City to compel the issuance of the 2002 mayors permit. The case was raffled to Branch 19 of the Cauayan City RTC. When the RTC of Cauayan denied petitioners accompanying application for injunctive relief, they filed a special civil action for certiorari with the Court of Appeals,162 but this would be dismissed by the appellate court due to the availability of other speedy remedies with the trial court. In February of 2003, the RTC dismissed the mandamus action for being moot and academic.163

In the meantime, petitioners sought to obtain from the DAR Region II Office a formal recognition of the conversion of the CDC property from agricultural to commercial. The matter was docketed as Adm. Case No. A-0200A-07B-002. Then DAR Region II Director Abrino L. Aydinan (Director Aydinan) granted the application and issued an Order that stated that there remains no doubt on the part of this Office of the non-agricultural classification of subject land before the

161

Supra note 2. Docketed as Spl. Civil Action No. 19-124 with the Regional Trial Court of Cauayan City,

Branch 19.
162

See rollo (G.R. No. 170270), p. 21; Docketed as C.A. G.R. No. 70361. Rollo, p. 22.

163

effectivity of Republic Act No. 6657 otherwise known as the Comprehensive Agrarian Reform Law of 1988.164 Consequently, the DAR Region II Office ordered the formal exclusion of the property from the Comprehensive Agrarian Reform Program, and the waiver of any requirement for formal clearance of the conversion of the subject land from agricultural to non-agricultural use.165

On 16 January 2003, petitioners filed their applications for renewal of mayors permit for the year 2003, attaching therein the DAR Order. Their application was approved. However, on 4 March 2003, respondent Felicisimo Meer, Acting City Administrator of Cauayan City, wrote to petitioners claiming that the DAR Order was spurious or void, as the Regional Center for Land Use Policy Planning and Implementation (RCLUPPI) supposedly reported that it did not have any record of the DAR Order. A series of correspondences followed wherein petitioners defended the authenticity of the DAR Order and the commercial character of the property, while respondent Meer demanded independent proof showing the authenticity of the Aydinan Order. It does not appear though that any action was taken against petitioners by respondents in 2003, and petitioners that year paid realty taxes on the property based on the classification that said property is commercial.166

164

Id. at 111. Id. at 115. Rollo (G.R. No. 179411), pp. 21-22.

165

166

The controversy continued into 2004. In January of that year, petitioners filed their respective applications for their 2004 mayors permit, again with the DAR Order attached to the same. A zonal clearance was issued in favor of petitioners. Yet in a letter dated 13 January 2004, respondent Meer claimed that no record existed of DAR Adm. Case No. A-0200A-07B-002 with the Office of the Regional Director of the DAR or with the RCLUPPI.167 As a result, petitioners were informed that there was no basis for the issuance in their favor of the requisite zoning clearance needed for the issuance of the mayors permit.168

Another series of correspondences ensued between Meer and the station manager of DZNC, Charmy Sabigan (Sabigan). Sabigan reiterated the authenticity of the DAR Order and the commercial character of the property, while Meer twice extended the period for application of the mayors permit, while reminding them of the need to submit the certifications from the DAR or the Sangguniang Panlalawigan that the property had been duly converted for commercial use.

The deadline for application for the mayors permit lapsed on 15 February 2004, despite petitioners plea for another extension. On 17 February 2004, respondents Meer and Racma Fernandez-Garcia, City Legal Officer of Cauayan City, arrived at the property and closed the radio stations. Petitioners proceeded to file a petition with the Commission on Elections (COMELEC) seeking
167

Rollo, p. 171. Id.

168

enforcement of the Omnibus Election Code, which prohibited the closure of radio stations during the then-pendency of the election period. On 23 March 2004, the COMELEC issued an order directing the parties to maintain the status prevailing before 17 February 2004, thus allowing the operation of the radio stations, and petitioners proceeded to operate the stations the following day. Within hours, respondent Mayor Ceasar Dy issued a Closure Order dated 24 March 2004, stating therein that since petitioners did not have the requisite permits before 17 February 2004, the status quo meant that the stations were not in fact allowed to operate.169 Through the intervention of the COMELEC, petitioners were able to resume operation of the stations on 30 March 2004. On 9 May 2004, or two days before the general elections of that year, the COMELEC denied the petition filed by petitioners and set aside the status quo order.170 However, this Resolution was reconsidered just 9 days later, or on 16 May 2004, and the COMELEC directed the maintenance of the status quo until 9 June 2004, the date of the end of the election period.

Petitioners were thus able to continue operations until 10 June 2004, the day when respondents yet again closed the radio stations. This closure proved to be more permanent.

169

Id. at 198.

Id. at 203-208. Resolution signed by Chairman Benjamin S. Abalos, Sr., and Commissioners Rufino S.B. Javier, Mehol K. Sadain, Resurreccion Z. Borra, Florentino A. Tuason, Jr., and Virgilio O. Garcillano. Commisioner Manuel A. Barcelona dissented.

170

By this time, the instant legal battle over the sought-after mayors permits had already been well under way. On 15 April 2004, petitioners filed a petition for mandamus, docketed as SCA No. 20-171, with the RTC of Cauayan City, Branch 20. The petition was accompanied by an application for the issuance of temporary restraining order and writ of preliminary prohibitory injunction, both provisional reliefs being denied by the RTC through an Order dated 20 April 2004. Respondents duly filed an Answer with Counterclaims on 3 May 2004. Due to the aforementioned closure of the radio stations on 10 June 2004, petitioners filed with the RTC a Motion for the Issuance of a Writ of Preliminary Mandatory Injunction dated 15 June 2004, praying that said writ be issued to allow petitioners to resume operations of the radio stations. No hearing would be conducted on the motion, nor would it be formally ruled on by the RTC.

On 14 September 2004, the RTC rendered a Decision denying the petition for mandamus.171 The RTC upheld all the arguments of the respondents, including their right to deny the sought after mayors permit unless they were duly satisfied that the subject property has been classified as commercial in nature. The Decision made no reference to the application for a writ of preliminary mandatory injunction. Petitioners filed a motion for reconsideration,172 citing the trial courts failure to hear and act on the motion for preliminary mandatory injunction as a violation of the right to due process, and disputing the RTCs

171

Id. at 339-348. Id. at 349-379.

172

conclusions with respect to their right to secure the mayors permit. This motion was denied in an Order dated 1 December 2004.

Petitioners initiated two separate actions with the Court of Appeals following the rulings of the RTC. On 13 December 2004, they filed a Petition for Certiorari under Rule 65, docketed as CA G.R. No. 87815, raffled to the Fourteenth Division.173 This petition imputed grave abuse of discretion on the part of the RTC for denying their application for preliminary mandatory injunction. On the same day, petitioners also filed a Notice of Appeal with the RTC, this time in connection with the denial of their petition for mandamus. This appeal was docketed as CA G.R. SP No. 88283 and raffled to the Eleventh Division.

Petitioners lost both of their cases with the Court of Appeals. On 27 October 2005, the Court of Appeals in CA G.R. No. 87815 dismissed the Petition for Certiorari, ruling that the RTC did not commit any grave abuse of discretion in impliedly denying the application for preliminary mandatory injunction. On 30 May 2007, the Court of Appeals in CA-G.R. SP No. 88283 denied the appeal by certiorari, affirming the right of the respondents to deny petitioners their mayors permits. On both occasions, petitioners filed with this Court respective petitions for review under Rule 45 the instant petitions, now docketed as G.R. Nos. 170270 and 179411.

173

Id. at 386-449.

On 23 January 2006, the Court in G.R. No. 170270 issued a writ of preliminary injunction, enjoining respondents from implementing the closure order dated March 24, 2005, or otherwise interfering with the operations of Bombo Radyo DZNC Cauayan (NBN) and STAR FM DWIT Cauayan (CBS) in Cauayan City until final orders from this Court.174 On 21 January 2008, the Court resolved to consolidate G.R. No. 170270 with G.R. No. 179411, which had been initially dismissed outright but was reinstated on even date.175

Certiorari lies in both instances.

II.

The fundamental constitutional principle that informs our analysis of both petitions is the freedom of speech, of expression or the press.176 Free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt

174

Rollo (G.R. No. 170270), pp. 677-678. Rollo (G.R. No. 179411), p. 1198. Article 3, Sec. 4.

175

176

proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent.177

Petitioners have taken great pains to depict their struggle as a textbook case of denial of the right to free speech and of the press. In their tale, there is undeniable political color. They admit that in 2001, Bombo Radyo was aggressive in exposing the widespread election irregularities in Isabela that appear to have favored respondent Dy and other members of the Dy political dynasty.178 Respondent Ceasar Dy is the brother of Faustino Dy, Jr., governor of Isabela from 2001 until he was defeated in his re-election bid in 2004 by Grace Padaca, a former assistant station manager at petitioners own DZNC Bombo Radyo.179 A rival AM radio station in Cauayan City, DWDY, is owned and operated by the Dy family.180 Petitioners likewise direct our attention to a 20 February 2004 article printed in the Philippine Daily Inquirer where Dy is quoted as intending to file disenfranchisement proceedings against DZNC-AM.181

The partisan component of this dispute will no doubt sway many observers towards one opinion or the other, but not us. The comfort offered by the

177

Gonzales v. COMELEC, 137 Phil. 471, 492 (1969). Rollo (G.R. No. 170270), p. 27.

178

See TJ Burgonio, Isabela gov who ended a dynasty wins RM prize, Philippine Daily Inquirer (1 August 2008), at http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view /20080801-151950/Isabela-gov-who-ended-a-dynasty-wins-RM-prize
180

179

Rollo (G.R. No. 170270), p. 17. Rollo (G.R. No. 179411), p. 142.

181

constitutional shelter of free expression is neutral as to personality, affinity, ideology and popularity. The judges tasked to enforce constitutional order are expected to rule accordingly from the comfort of that neutral shelter.

Still, it cannot be denied that our Constitution has a systemic bias towards free speech. The absolutist tenor of Section 4, Article III testifies to that fact. The individual discomforts to particular people or enterprises engendered by the exercise of the right, for which at times remedies may be due, do not diminish the indispensable nature of free expression to the democratic way of life.

The following undisputed facts bring the issue of free expression to fore. Petitioners are authorized by law to operate radio stations in Cauayan City, and had been doing so for some years undisturbed by local authorities. Beginning in 2002, respondents in their official capacities have taken actions, whatever may be the motive, that have impeded the ability of petitioners to freely broadcast, if not broadcast at all. These actions have ranged from withholding permits to operate to the physical closure of those stations under color of legal authority. While once petitioners were able to broadcast freely, the weight of government has since bore down upon them to silence their voices on the airwaves. An elementary school child with a basic understanding of civics lessons will recognize that free speech animates these cases.

Without taking into account any extenuating circumstances that may favor the respondents, we can identify the bare acts of closing the radio stations or preventing their operations as an act of prior restraint against speech, expression or of the press. Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.182 While any system of prior restraint comes to court bearing a heavy burden against its constitutionality,183 not all prior restraints on speech are invalid.184

Nonetheless, there are added legal complexities to these cases which may not be necessarily accessible to the layperson. The actions taken by respondents are colored with legal authority, under the powers of local governments vested in the Local Government Code (LGC), or more generally, the police powers of the State. We do not doubt that Local Government Units (LGU) are capacitated to enact ordinances requiring the obtention of licenses or permits by businesses, a term defined elsewhere in the LGC as trade or commercial activity regularly engaged in as a means of livelihood or with a view to profit.

And there is the fact that the mode of expression restrained in these cases broadcast is not one which petitioners are physically able to accomplish

182

Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, 545 SCRA 441, 491.

Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571, 585 (2001); citing New York Times v. United States, 403 U.S. 713, 714, 29 L. Ed. 2d 822, 824 (1971).
184

183

Chavez v. Gonzales, G.R. No. 168335, 15 February 2008, 545 SCRA 441, 492.

without interacting with the regulatory arm of the government. Expression in media such as print or the Internet is not burdened by such requirements as congressional franchises or administrative licenses which bear upon broadcast media. Broadcast is hampered by its utilization of the finite resources of the electromagnetic spectrum, which long ago necessitated government intervention and administration to allow for the orderly allocation of bandwidth, with broadcasters agreeing in turn to be subjected to regulation. There is no issue herein that calls into question the authority under law of petitioners to engage in broadcasting activity, yet these circumstances are well worth pointing out if only to provide the correct perspective that broadcast media enjoys a somewhat lesser degree of constitutional protection than print media or the Internet.

It emerges then that there exists tension between petitioners right to free expression, and respondents authority by law to regulate local enterprises. What are the rules of adjudication that govern the judicial resolution of this controversy?

B.

That the acts imputed against respondents constitute a prior restraint on the freedom of expression of respondents who happen to be members of the press is clear enough. There is a long-standing tradition of special judicial solicitude for free speech, meaning that governmental action directed at

expression must satisfy a greater burden of justification than governmental action directed at most other forms of behavior.185 We had said in SWS v. COMELEC: Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. Indeed, any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government 'thus carries a heavy burden of showing justification for the enforcement of such restraint. There is thus a reversal of the normal presumption of validity that inheres in every legislation.186

At the same time, jurisprudence distinguishes between

a content-

neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; and a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech.187 Content-based laws are generally treated as more suspect than content-neutral laws because of judicial concern with discrimination in the regulation of expression.188 Contentneutral regulations of speech or of conduct that may amount to speech, are subject to lesser but still heightened scrutiny.189

185

GUNTHER, et al., CONSTITUTIONAL LAW (14th ed., 2001), at 964. SWS v. COMELEC, supra note 39. Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, 545 SCRA 441, 493. GUNTHER, et al., supra note 44. Id. at 957.

186

187

188

189

Ostensibly, the act of an LGU requiring a business of proof that the property from which it operates has been zoned for commercial use can be argued, when applied to a radio station, as content-neutral since such a regulation would presumably apply to any other radio station or business enterprise within the LGU.

However, the circumstances of this case dictate that we view the action of the respondents as a content-based restraint. In their petition for mandamus filed with the RTC, petitioners make the following relevant allegations:

6.1. With specific reference to DZNC, Newsounds, to this date, is engaged in discussing public issues that include, among others, the conduct of public officials that are detrimental to the constituents of Isabela, including Cauayan City. In view of its wide coverage, DZNC has been a primary medium for the exercise of the people of Isabela of their constitutional right to free speech. Corollarily, DZNC has always been at the forefront of the struggle to maintain and uphold freedom of the press, and the peoples corollary right to freedom of speech, expression and petition the government for redress of grievances.

6.2. Newsounds only rival AM station in Cauayan and the rest of Isabela, DWDY, is owned and operated by the family of respondent Dy.190

xxxx

35. Respondents closure of petitioners radio stations is clearly tainted with ill motives.

35.1. It must be pointed out that in the 2001 elections, Bombo Radyo was aggressive in exposing the widespread election irregularities in Isabela that appear to have favored respondent Dy and other members of the Dy political dynasty. It is just too coincidental that it was only after the 2001 elections (i.e., 2002) that the Mayors Office started questioning petitioners applications for renewal of their mayors permits.

35.2. In an article found in the Philippine Daily inquirer dated 20 February 2004, respondent Dy was quoted as saying that he will disenfranchise the radio station. Such statement manifests and confirms that respondents denial of petitioners renewal applications on the ground that the Property is commercial is merely a pretext and that their real agenda is to remove petitioners from Cauayan City and suppress the latters voice. This is a blatant violation of the petitioners constitutional right to press freedom.

190

Rollo (G.R. No. 179411), p. 170.

A copy of the newspaper article is attached hereto as Annex JJ.

35.3. The timing of respondents closure of petitioners radio stations is also very telling. The closure comes at a most critical time when the people are set to exercise their right of suffrage. Such timing emphasizes the ill motives of respondents.191

In their Answer with Comment192 to the petition for mandamus, respondents admitted that petitioners had made such exposes during the 2001 elections, though they denied the nature and truthfulness of such reports.193 They conceded that the Philippine Daily Inquirer story reported that Dy said he planned to file disenfranchisement proceedings against [DZNC]-AM.194 While respondents assert that there are other AM radio stations in Isabela, they do not specifically refute that station DWDY was owned by the Dy family, or that DZNC and DWDY are the two only stations that operate out of Cauayan.195

191

Id. at 178-179. Id. at 204-239. Id. at 207. Id. Id. at 205.

192

193

194

195

Prior to 2002, petitioners had not been frustrated in securing the various local government requirements for the operation of their stations. It was only in the beginning of 2002, after the election of respondent Ceasar Dy as mayor of Cauayan, that the local government started to impose these new requirements substantiating the conversion of CDCs property for commercial use. Petitioners admit that during the 2001 elections, Bombo Radyo was aggressive in exposing the widespread election irregularities in Isabela that appear to have favored Respondent Dy and other members of the Dy political dynasty.196 Respondents efforts to close petitioners radio station clearly intensified immediately before the May 2004 elections, where a former employee of DZNC Bombo Radyo, Grace Padaca, was mounting a credible and ultimately successful challenge against the incumbent Isabela governor, who happened to be the brother of respondent Dy. It also bears notice that the requirements required of petitioners by the Cauayan City government are frankly beyond the pale and not conventionally adopted by local governments throughout the Philippines.

All those circumstances lead us to believe that the steps employed by respondents to ultimately shut down petitioners radio station were ultimately content-based. The United States Supreme Court generally treats restriction of the expression of a particular point of view as the paradigm violation of the First Amendment.197 The facts confronting us now could have easily been drawn up by

196

Id. at 26. GUNTHER et. al., supra note 44.

197

a constitutional law professor eager to provide a plain example on how free speech may be violated.

The Court is of the position that the actions of the respondents warrant heightened or strict scrutiny from the Court, the test which we have deemed appropriate in assessing content-based restrictions on free speech, as well as for laws dealing with freedom of the mind or restricting the political process, of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection.198 The immediate implication of the application of the strict scrutiny test is that the burden falls upon respondents as agents of government to prove that their actions do not infringe upon petitioners constitutional rights. As content regulation cannot be done in the absence of any compelling reason,199 the burden lies with the government to establish such compelling reason to infringe the right to free expression.

III.

198

See White Light v. Court of Appeals, G.R. No. 122846, 20 January 2009. Osmea v. COMELEC, 351 Phil. 692, 711 (1998).

199

We first turn to whether the implicit denial of the application for preliminary mandatory injunction by the RTC was in fact attended with grave abuse of discretion. This is the main issue raised in G.R. No. 170270.

To recall, the RTC on 20 April 2004 issued an order denying the prayer for the issuance of a writ of preliminary injunction, claiming that *t+here is insufficiency of allegation*t+here is no certainty that after the election period, the respondents will interfere with the operation of the radio stations x x x which are now operating by virtue of the order of the COMELEC.200 Petitioners filed a motion for reconsideration, which the RTC denied on 13 May 2004. The refusal of the RTC to grant provisional relief gave way to the closure of petitioners radio stations on 10 June 2004, leading for them to file a motion for the issuance of a writ of preliminary mandatory injunction on 25 June 2004. This motion had not yet been acted upon when on 14 September 2004, the RTC promulgated its decision denying the petition for mandamus.

Among the arguments raised by petitioners in their motion for reconsideration before the RTC was against the implied denial of their motion for the issuance of a writ of preliminary mandatory injunction, claiming in particular that such implicit denial violated petitioners right to due process of law since no hearing was conducted thereupon. However, when the RTC denied the motion for reconsideration in its 1 December 2004 Order, it noted that its implied denial of

200

Rollo (G.R. No. 179411), p. 191.

the motion for a writ of preliminary mandatory injunction was not a ground for reconsideration of its decision.

Petitioners maintain that the RTC acted with grave abuse of discretion when it impliedly denied their motion for the issuance of a writ of preliminary mandatory injunction without any hearing. The Court of Appeals pointed out that under Section 5 of Rule 58 of the 1997 Rules of Civil Procedure, it is the granting of a writ of preliminary injunction that mandatorily requires a hearing. The interpretation of the appellate court is supported by the language of the rule itself:

SEC. 5. Preliminary injunction not granted without notice; exception. No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. x x x

Section 5 of Rule 58 prescribes a mandatory hearing and prior notice to the party or person sought to be enjoined if preliminary injunction should be granted. It imposes no similar requirement if such provisional relief were to be

denied. We in fact agree with the Court of Appeals that if on the face of the pleadings, the applicant for preliminary injunction is not entitled thereto, courts may outrightly deny the motion without conducting a hearing for the purpose.201 The Court is disinclined to impose a mandatory hearing requirement on applications for injunction even if on its face, injunctive relief is palpably without merit or impossible to grant. Otherwise, our trial courts will be forced to hear out the sort of litigation-happy attention-deprived miscreants who abuse the judicial processes by filing complaints against real or imaginary persons based on trivial or inexistent slights.

We do not wish though to dwell on this point, as there is an even more fundamental point to consider. Even as we decline to agree to a general that the denial of an application for injunction requires a prior hearing, we believe in this case that petitioners deserved not only a hearing on their motion, but the very writ itself.

As earlier stated, the burden of presuming valid the actions of respondents sought, fraught as they were with alleged violations on petitioners constitutional right to expression, fell on respondents themselves. This was true from the very moment the petition for mandamus was filed. It was evident from the petition that the threat against petitioners was not wildly imagined, or speculative in any way. Attached to the petition itself was the Closure Order dated 13 February

201

Rollo (G.R. No. 170270), p. 120.

2004 issued by respondents against petitioners.202 There was no better evidence to substantiate the claim that petitioners faced the live threat of their closure. Moreover, respondents in their Answer admitted to issuing the Closure Order.203

At the moment the petition was filed, there was no basis for the RTC to assume that there was no actual threat hovering over petitioners for the closure of their radio stations. The trial court should have been cognizant of the constitutional implications of the case, and appreciated that the burden now fell on respondents to defend the constitutionality of their actions. From that mindset, the trial court could not have properly denied provisional relief without any hearing since absent any extenuating defense offered by the respondents, their actions remained presumptively invalid.

Our conclusions hold true not only with respect to the implied denial of the motion for preliminary injunction, but also with the initial denial without hearing on 20 April 2004 of the prayer for a writ of preliminary injunction and temporary restraining order. Admittedly, such initial denial is not the object of these petitions, yet we can observe that such action of the RTC was attended with grave abuse of discretion, the trial court betraying ignorance of the constitutional implications of the petition. With respect to the subsequent implied denial of the writ of preliminary mandatory injunction, the grave abuse of discretion on the

202

Rollo (G.R. No. 179411), p. 210. Id. at 247.

203

part of the trial court is even more glaring. At that point, petitioners radio stations were not merely under threat of closure, they were already actually closed. Petitioners constitutional rights were not merely under threat of infringement, they were already definitely infringed.

The application of the strict scrutiny analysis to petitioners claims for provisional relief warrants the inevitable conclusion that the trial court cannot deny provisional relief to the party alleging a prima facie case alleging government infringement on the right to free expression without hearing from the infringer the cause why its actions should be sustained provisionally. Such acts of infringement are presumptively unconstitutional, thus the trial court cannot deny provisional relief outright since to do so would lead to the sustention of a presumptively unconstitutional act. It would be necessary for the infringer to appear in court and somehow rebut against the presumption of

unconstitutionality for the trial court to deny the injunctive relief sought for in cases where there is a prima facie case establishing the infringement of the right to free expression.

Those above-stated guidelines, which pertain most particularly to the ex parte denial of provisional relief in free expression cases, stand independently of the established requisites for a party to be entitled to such provisional reliefs. With respect to writs of preliminary injunction, the requisite grounds are spelled out in Section 3 of Rule 58 of the Rules of Court.

It may be pointed out that the application for preliminary mandatory injunction after petitioners radio stations had been closed was mooted by the RTC decision denying the petition for mandamus. Ideally, the RTC should have acted on the motion asking for the issuance of the writ before rendering its decision. Given the circumstances, petitioners were entitled to immediate relief after they filed their motion on 25 June 2004, some two and a half months before the RTC decision was promulgated on 14 September 2004. It is not immediately clear why the motion, which had been set for hearing on 2 July 2004, had not been heard by the RTC, so we have no basis for imputing bad faith on the part of the trial court in purposely delaying the hearing to render it moot with the forthcoming rendition of the decision. Nonetheless, given the gravity of the constitutional question involved, and the fact that the radio stations had already been actually closed, a prudent judge would have strived to hear the motion and act on it accordingly independent of the ultimate decision.

Since the prayer for the issuance of a writ of mandatory injunction in this case was impliedly denied through the decision denying the main action, we have no choice but to presume that the prayer for injunction was denied on the same bases as the denial of the petition for mandamus itself. The time has come for us to review such denial, the main issue raised in G.R. No. 179411.

IV.

The perspective from which the parties present the matter for resolution in G.R. No. 179411 is whether the property of CDC had been duly converted or classified for commercial use, with petitioners arguing that it was while respondents claiming that the property remains agricultural in character. This perspective, to our mind, is highly myopic and implicitly assumes that the requirements imposed on petitioners by the Cauayan City government are in fact legitimate.

The LGC authorizes local legislative bodies to enact ordinances authorizing the issuance of permits or licenses upon such conditions and for such purposes intended to promote the general welfare of the inhabitants of the LGU.204 A municipal or city mayor is likewise authorized under the LGC to issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance.205 Generally, LGUs have exercised its authority to require permits or licenses from business enterprises operating within its territorial jurisdiction.

A municipal license is essentially a governmental restriction upon private rights and is valid only if based upon an exercise by the municipality of its police

204

LOCAL GOVERNMENT CODE (1991), Secs. 447(3) & 458(3). See note 43.

205

or taxing powers.206 The LGC subjects the power of sanggunians to enact ordinances requiring licenses or permits within the parameters of Book II of the Code, concerning Local Taxation and Fiscal Matters. It also necessarily follows that the exercise of this power should also be consistent with the Constitution as well as the other laws of the land.

Nothing in national law exempts media entities that also operate as businesses such as newspapers and broadcast stations such as petitioners from being required to obtain permits or licenses from local governments in the same manner as other businesses are expected to do so. While this may lead to some concern that requiring media entities to secure licenses or permits from local government units infringes on the constitutional right to a free press, we see no concern so long as such requirement has been duly ordained through local legislation and content-neutral in character, i.e., applicable to all other similarly situated businesses.

Indeed, there are safeguards within the LGC against the arbitrary or unwarranted exercise of the authority to issue licenses and permits. As earlier noted, the power of sanggunians to enact ordinances authorizing the issuance of permits or licenses is subject to the provisions of Book Two of the LGC. The

ANGELES, RESTATEMENT OF THE LAW ON LOCAL GOVERNMENTS (2005 ed.), at 124; citing 9 MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS, 26.01.10 (3rd ed.); In re Wan Yin, 22 F 701; Father Basils Lodge, Inc. v. Chicago, 393 Ill 246, 65 NE2d 805.

206

power of the mayor to issue license and permits and suspend or revoke the same must be exercised pursuant to law or ordinance.207

In the case of Cauayan City, the authority to require a mayors permit was enacted through Ordinance No. 92-004, enacted in 1993 when Cauayan was still a municipality. We quote therefrom:

Sec. 3A.01. Imposition of Fee. There shall be imposed and collected an annual fee at the rates provided hereunder for the issuance of Mayors Permit to every person that shall conduct business, trade or activity within the Municipality of Cauayan.

The permit fee is payable for every separate or distinct establishment or place where the business trade or activity is conducted. One line of business or activity does not become exempt by being conducted with some other business or activity for which the permit fee has been paid.

x x x x

Sec. 3A.03. Application for Mayors Permit False Statements. A written application for a permit to operate a business shall be filed with the Office of the Mayor in three copies. The application form shall set forth the name and address of the applicant, the description
207

See note 43.

or style of business, the place where the business shall be conducted and such other pertinent information or data as may be required.

Upon submission of the application, it shall be the duty of the proper authorities to verify if the other Municipal requirements regarding the operation of the business or activity are complied with. The permit to operate shall be issued only upon such compliance and after the payment of the corresponding taxes and fees as required by this revenue code and other municipal tax ordinances.

Any false statement deliberately made by the applicant shall constitute sufficient ground for denying or revoking the permit issued by the Mayor, and the applicant or licensee may further be prosecuted in accordance with the penalties provided in this article.

A Mayors Permit shall be refused to any person:

(1) Whose business establishment or undertaking does not conform with zoning regulations and safety, health and other requirements of the Municipality; (2) that has an unsettled tax obligations, debt or other liability to the Municipal Government; and (3) that is disqualified under any provision of law or ordinance to establish, or operate the business for which a permit is being applied.208

208

Rollo (G.R. No. 179411), pp. 300-301.

Petitioners do not challenge the validity of Ordinance No. 92-004. On its face, it operates as a content-neutral regulation that does not impose any special impediment to the exercise of the constitutional right to free expression. Still, it can be seen how under the veil of Ordinance No. 92-004 or any other similarly oriented ordinance, a local government unit such as Cauayan City may attempt to infringe on such constitutional rights.

A local government can quite easily cite any of its regulatory ordinances to impose retaliatory measures against persons who run afoul it, such business owned by an opponent of the government, or a as a

crusading newspaper or radio station. While the ill-motives of a local government do not exempt the injured regulatory subject from complying with the municipal laws, such laws themselves do not insulate those ill-motives if they are attended with infringements of constitutional rights, such as due process, equal protection and the right to free expression. Our system of laws especially frown upon violations of the guarantee to free speech, expression and a free press, vital as these are to our democratic regime.

Nothing in Ordinance No. 92-004 requires, as respondents did, that an applicant for a mayors permit submit either an approved land conversion papers from the DAR showing that its property was converted from prime agricultural land to commercial land, or an approved resolution from the Sangguniang Bayan

or Sangguniang Panglungsod authorizing the re-classification of the property from agricultural to commercial land.209 The aforecited provision which details the procedure for applying for a mayors permit does not require any accompanying documents to the application, much less those sought from petitioners by respondents. Moreover, Ordinance No. 92-004 does not impose on the applicant any burden to establish that the property from where the business was to operate had been duly classified as commercial in nature.

According to respondents, it was only in 2002 that the more diligent Respondent Bagnos Maximo discovered the mistake committed by his predecessor in the issuance of the Petitioners Zoning Certifications from 1996 to 2001.210 Assuming that were true, it would perhaps have given cause for the local government in requiring the business so affected to submit additional requirements not required of other applicants related to the classification of its property. Still, there are multitude of circumstances that belie the claim that the previous certifications issued by the OMPDC as to the commercial character of CDCs property was incorrect.

On 5 July 1996, the HLURB issued a Zoning Decision that classified the property as Commercial.211 The HLURB is vested with authority to review,

209

Supra note 16. Rollo (G.R. No. 179411), p. 771. Rollo, p. 91.

210

211

evaluate and approve or disapprovethe zoning component of subdivisions, condominiums or estate development projects including industrial estates, of both the public and private sectors.212 In exercising such power, the HLURB is required to use Development Plans and Zoning Ordinances of local governments herein.213 There is no reason to doubt that when the HLURB acknowledged in 1996 that the property in question was commercial, it had consulted the development plans and zoning ordinances of Cauayan.

Assuming that respondents are correct that the property was belatedly revealed as non-commercial, it could only mean that even the HLURB, and not just the local government of Cauayan erred when in 1996 it classified the property as commercial. Or, that between 1996 to 2002, the property somehow was reclassified from commercial to agricultural. There is neither evidence nor suggestion from respondents that the latter circumstance obtained. Petitioners are also armed with six certifications issued by the OMPDC for the consecutive years 1996 to 2001, all of which certify that the property is classified as commercial areain conformity with the Land Use Plan of this municipality and does not in any way violate the existing Zoning Ordinance of Cauayan, Isabela.214 In addition, from 1997 to 2004,

petitioners paid real property taxes on the property based on the classification of the property as commercial, without any objections raised

212

See Executive Order No. 648 (1991), Article IV, Sec. 5(b). Id. Rollo (G.R. No. 179411), pp. 92-97.

213

214

by respondents.215 These facts again tend to confirm that contrary to respondents assertions, the property has long been classified as commercial. Petitioners persuasively argue that this consistent recognition by the local government of Cauayan of the commercial character of the property constitutes estoppel against respondents from denying that fact before the courts. The lower courts had ruled that the government of Cauayan City is not bound by estoppel, but petitioners point out our holding in Republic v. Sandiganbayan216 where it was clarified that this concept is understood to refer to acts and mistakes of its officials especially those which are irregular.217 Indeed, despite the general rule that the State cannot be put in estoppel by the mistake or errors of its officials or agents, we have also recognized, thus: Estoppels against the public are little favored. They should not be invoked except in a rare and unusual circumstances, and may not be invoked where they would operate to defeat the effective operation of a policy adopted to protect the public. They must be applied with circumspection and should be applied only in those special cases where the interests of justice clearly require it. Nevertheless, the government must not be allowed to deal dishonorably or capriciously with its citizens, and must not play an ignoble part or do a shabby thing; and subject to limitations . . ., the doctrine of equitable estoppel

215

Id. at 103-107, 126-127, 140-141. G.R. No. 108292, 10 September 1993, 226 SCRA 314.

216

Id. at 325-326. See also Republic v. Court of Appeals, 361 Phil. 319 (1999); PCGG v. Sandiganbayan, 353 Phil. 80 (1998); H. de Leon, PHILIPPINE CONSTITUTIONAL LAW, at 781.

217

may be invoked against public authorities as well as against private individuals.218

Thus, when there is no convincing evidence to prove irregularity or negligence on the part of the government official whose acts are being disowned other than the bare assertion on the part of the State, we have declined to apply State immunity from estoppel.219 Herein, there is absolutely no evidence other than the bare assertions of the respondents that the Cauayan City government had previously erred when it certified that the property had been zoned for commercial use. One would assume that if respondents were correct, they would have adduced the factual or legal basis for their contention, such as the local governments land use plan or zoning ordinance that would indicate that the property was not commercial. Respondents did not do so, and the absence of any evidence other than bare assertions that the 1996 to 2001 certifications were incorrect lead to the ineluctable conclusion that respondents are estopped from asserting that the previous recognition of the property as commercial was wrong.

The RTC nonetheless asserted that the previous certifications, issued by Deputy Zoning Administrator Romeo N. Perez (Perez), were incorrect as he had no authority to make the conversion or reclassification of the land from agricultural to commercial.220 Yet contrary to the premise of the RTC, the

218

Republic v. Court of Appeals, supra note 76 at 329; citing 31 CJS 675-676.

219

PCGG v. Sandiganbayan, supra note 76. Rollo (G.R. No. 179411), p. 302.

220

certifications issued by Perez did no such thing. Nowhere in the certifications did it state that Perez was exercising the power to reclassify the land from agricultural to commercial. What Perez attested to in those documents was that the property is classified as Commercial area, in conformity with the Land Use Plan of this municipality and does not in any way violate the existing Zoning Ordinance of Cauayan, Isabela. What these certifications confirm is that according to the Land Use Plan and existing zoning ordinances of Cauayan, the property in question is commercial.

Compounding its error, the RTC also stated that following Section 65221 of Rep. Act No. 6657, or the Comprehensive Agrarian Reform Law, only the DAR, upon proper application can authorize the reclassification or conversion of the use of the land from agricultural to residential, commercial or industrial. The citation is misleading. Section 4 of the same law provides for the scope of the agrarian reform program under the CARL as covering all public and private agricultural lands, as provided in Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain suitable for agriculture.222 Section 3(c) defines agricultural lands as land devoted to agricultural activity as defined in this Act and not classified as mineral, forest,

SECTION 65. Conversion of Lands. After the lapse of five (5) years from its award, when the land ceases to be economically feasible and sound for agricultural purposes, or the locality has become urbanized and the land will have a greater economic value for residential, commercial or industrial purposes, the DAR, upon application of the beneficiary or the landowner, with due notice to the affected parties, and subject to existing laws, may authorize the reclassification or conversion of the land and its disposition: provided, that the beneficiary shall have fully paid his obligation.
222

221

Republic Act No. 6657 (1988), Sec. 4.

residential, commercial or industrial land.223 Obviously, if the property had already been classified as commercial land at the time of the enactment of the CARL, it does not fall within the class of agricultural lands which may be subject of conversion under Section 65 of that law. Section 65, as relied upon by the trial court, would have been of relevance only if it had been demonstrated by respondents that the property was still classified as agricultural when the CARL was enacted.

It is worth emphasizing that because the acts complained of the respondents led to the closure of petitioners radio stations, at the height of election season no less, respondents actions warrant strict scrutiny from the courts, and there can be no presumption that their acts are constitutional or valid. In discharging the burden of establishing the validity of their actions, it is expected that respondents, as a condition sine qua non, present the legal basis for their claim that the property was not zoned commercially the proclaimed reason for the closure of the radio stations. The lower courts should have known better than to have swallowed respondents unsubstantiated assertion hook, line and sinker.

We can also point out that aside from the evidence we have cited, petitioners contention that the property had been duly classified for commercial use finds corroboration from the Order dated 14 March 2002 issued by DAR

223

Republic Act No. 6657 (1988), Sec. 3(c).

Region II Director Aydinan in Adm. Case No. A-0200A-07B-002. The Order stated, viz:

Official records examined by this Office indicate continued use of subject land for purposes other than agricultural since 1986. Back when Cauayan was still a municipality, the Office of the Planning and Development Coordinator documented subject land under a commercial classification. The Zoning Administrator deputized by the Housing and Land Use Regulatory Board certified in 1998 that subject lands attribution to the Commercial Zone is in conformity with the Land Use Plan of this municipality and does not in any way violate any existing Zoning Ordinance of Cauayan, Isabela adding the stipulation that a 15 meter setback from the centerline of the National Road has to be observed.

If the area in which subject land is found was already classified non-agricultural even before urban growth saw Cauayan became a city in 2001, assuming its reversion to the agricultural zone now taxes logic. In any case, such a dubious assumption can find no support in any current land use plan for Cauayan approved by the National Economic Development Authority.224

Petitioners citation of this Order has been viciously attacked by respondents, with approval from the lower courts. Yet their challenges are quite off-base, and ultimately irrelevant.
224

Id. at 113-114.

The Order has been characterized by respondents as a forgery, based on a certification issued by the Head of the RCLUPPI Secretariat that his office has no official record nor case docketed of the petition filed by CBS Development Corporation, represented by Charmy Sabigan and the order issued bearing Docket No. ADM. Case No. A-02200A-07B-002 of the subject case, did not emanate from RCLUPPI which has its own docketing system to applications for conversion/exemption under DOJ Opinion No. 44, Series of 1990.225 Respondents thus hint at a scenario where petitioners scrambled to create the Order out of nowhere in order to comply with the sought-after requirements. However, an examination of the Order reveals an explanation that attests to the veracity of the Order without denigrating from the truthfulness of the RCLUPPI certification.

The Order notes that the petition had been filed by CDC with the DAR Region II to, in effect, officially remove from the agrarian reform sub-zone, in particular, and the broad agricultural, in general, Petitioners land holding embraced by Transfer Certificate of Title No. T-254786 which is located in *B+arangay Minante II of Cauayan City x x x.226 It goes on to state:

Herein petition can go through the normal procedure and, after the submission of certain documentary supports that have to
225

See CA rollo (G.R. No. 170270), p. 234. Rollo (G.R. No. 179411), p. 112.

226

be gathered yet from various agencies, should be granted as a matter of course. However, a new dimension has been introduced when the unformalized conversion of the use of subject land from an agricultural to a non-agricultural mode has provided an excuse to some official quarters to disallow existing commercial operation, nay, the broadcast activities of Petitioner and, thus, perhaps threaten an essential freedom in our democratic setting, the liberty of mass media organizations to dispense legitimate information to the public unhampered by any extraneous obstacles. Hence, overarching public interest has made an official declaration of subject landholdings removal from the agricultural zone most urgent and, thus immediate action on the case imperative.

To the extent that legitimate social interest are unnecessarily prejudiced otherwise, procedural rules laid down by Government must yield to the living reason and to common sense in the concrete world as long as the underlying principles of effective social-justice administration and good governance are not unduly sacrificed. Thus, it is incumbent upon the Department of Agrarian Reform, or DAR for brevity, to take into account in decision-making with respect to the case at hand more basic principles in order to uphold the cause of conscientious and timely public service.

Needless to say, this Office, given the latitude of discretion inherent to it, can simultaneously address the Petition and the procedural concerns collateral to it when subordinate offices tend to treat such concerns as factors complicating the essential question or questions and view the Petition as one that it is not amenable to ready problem-solving and immediate decision-making. To forestall a cycle of helpless inaction or indecisive actions on the part of the subordinate offices as customarily happens in cases of this nature,

this Office shall proceed to treat the petition at hand as a matter of original jurisdiction in line with its order of Assumption of Direct Jurisdiction of 03 December 2001, a prior action taken, in general, by this Office over cases of Land-Tenure Improvement, Failure, Problematic Coverage, Land-Owners and Special Concerns, Other Potential Flash Points of Agrarian Conflict, and Long-Standing Problems Calling for Discretionary Decision Making.227

In so many words, DAR Region II Director Aydinan manifested that he was assuming direct jurisdiction over the petition, to the exclusion of subordinate offices such as that which issued the certification at the behest of the respondents, the RCLUPPI of the DAR Region II Office. Thus, the RCLUPPI could have validly attested that the subject case did not emanate from the RCLUPPI which has its own docketing system to applications for conversion/exemption under DOJ Opinion No. 44, Series of 1990. One could quibble over whether Director Aydinan had authority to assume direct jurisdiction over CDCs petition to the exclusion of the RCLUPPI, but it would not detract from the apparent fact that the Director of the DAR Region II Office did issue the challenged Order. Assuming that the Order was issued without or in excess of jurisdiction, it does not mean that the Order was forged or spurious, it would mean that the Order is void.

227

Id. at 112-113.

How necessary is it for us to delve into the validity or efficacy of the Aydinan Order? Certainly, any conclusions we draw from the said Order are ultimately irrelevant to the resolution of these petitions. The evidence is

compelling enough that the property had already been duly classified for commercial use long before the Aydinan Order was issued. Respondents, who had the burden of proving that they were warranted in ordering the closure of the radio stations, failed to present any evidence to dispute the long-standing commercial character of the property. The inevitable conclusion is that respondents very well knew that the property, was commercial in character, yet still proceeded without valid reason and on false pretenses, to refuse to issue the mayors permit and subsequently close the radio stations. There is circumstantial evidence that these actions were animated by naked political motive, by plain dislike by the Cauayan City powers-that-be of the content of the broadcast emanating in particular from DZNC, which had ties to political opponents of the respondents. Respondents were further estopped from disclaiming the previous consistent recognition by the Cauayan City government that the property was commercially zoned unless they had evidence, which they had none, that the local officials who issued such certifications acted irregularly in doing so.

It is thus evident that respondents had no valid cause at all to even require petitioners to secure approved land conversion papers from the DAR showing that the property was converted from prime agricultural land to commercial land. That requirement, assuming that it can be demanded by a local government in the context of approving mayors permits, should only obtain upon

clear proof that the property from where the business would operate was classified as agricultural under the LGUs land use plan or zoning ordinances and other relevant laws. No evidence to that effect was presented by the respondents either to the petitioners, or to the courts.

V.

Having established that respondents had violated petitioners legal and constitutional rights, let us now turn to the appropriate reliefs that should be granted.

At the time petitioners filed their special civil action for mandamus on 15 April 2004, their radio stations remained in operation despite an earlier attempt by respondents to close the same, by virtue of an order rendered by the COMELEC. The mandamus action sought to compel respondents to immediately issue petitioners zoning clearances and mayors permit for 2004. During the pendency of the action for mandamus, respondents finally succeeded in closing the radio stations, and it was possible at that stage for petitioners to have likewise sought the writs of prohibition and/or certiorari. Petitioners instead opted to seek for a writ or preliminary mandatory injunction from the trial court, a viable

recourse albeit one that remains ancillary to the main action for mandamus.

We had previously acknowledged that petitioners are entitled to a writ of preliminary mandatory injunction that would have prevented the closure of the radio stations. In addition, we hold that the writ of mandamus lies. Mandamus lies as the proper relief whenever a public officer 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.228 For the year 2004, petitioners had duly complied with the requirements for the issuance of the same mayors permit they had obtained without issue in years prior. There was no basis for respondents to have withheld the zoning clearances, and consequently the mayors permit, thereby depriving petitioners of the right to broadcast as certified by the Constitution and their particular legislative franchise.

We turn to the issue of damages. Petitioners had sought to recover from respondents P8 Million in temperate damages, P1 Million in exemplary damages, and P1 Million in attorneys fees. Given respondents clear violation of petitioners constitutional guarantee of free expression, the right to damages from respondents is squarely assured by Article 32 (2) of the Civil Code, which provides:

228

RULES OF CIVIL PROCEDURE (1997), Rule 65, Sec. 3.

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: x x x x (2) Freedom of speech;

We noted in Lim v. Ponce de Leon that [p]ublic officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties [and] the object of [Article 32 of the Civil Code] is to put an end to official abuse by plea of the good faith.229 The application of Article 32 not only serves as a measure of pecuniary recovery to mitigate the injury to constitutional rights, it likewise serves notice to public officers and employees that any violation on their part of any persons guarantees under the Bill of Rights will meet with final reckoning. The present prayer for temperate damages is premised on the existence of pecuniary injury to petitioner due to the actions of respondents, the amount of which nevertheless being difficult to prove.230 Temperate damages avail when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be proved with certainty.231 The existence of pecuniary injury at bar cannot be

160 Phil. 991, 1001 (1975). See also MHP Garments, Inc., v. Court of Appeals, G.R. No. 86720, 2 September 1994, 236 SCRA 227, 235.
230

229

Rollo (G.R. No. 179411), p. 183. See CIVIL CODE, Art. 2224.

231

denied. Petitioners had no way of knowing it when they filed their petition, but the actions of respondents led to the closure of their radio stations from June 2004 until this Court issued a writ of preliminary injunction in January 2006.232 The lost potential income during that one and a half year of closure can only be presumed as substantial enough. Still, despite that fact, possibly unanticipated when the original amount for claimed temperate damages was calculated, petitioners have maintained before this Court the same amount, P8 Million, for temperate damages. We deem the amount of P4 Million reasonable under the circumstances.233 Exemplary damages can be awarded herein, since temperate damages are available. Public officers who violate the Constitution they are sworn to uphold embody a poison of wickedness that may not run through the body politic.234 Respondents, by purposely denying the commercial character of the property in order to deny petitioners the exercise of their constitutional rights and their business, manifested bad faith in a wanton, fraudulent, oppressive and malevolent manner.235 The amount of exemplary damages need not be proved where it is shown that plaintiff is entitled to temperate damages,236 and the sought for amount of P1 Million

According to an article posted on the official website of Bombo Radyo, DZNC accordingly resumed broadcast on 8 February 2006. See http://www.bomboradyo.com/archive/ new/stationprofile /bombocauayan/index.htm (last visited, 6 March 2009)
233

232

See CIVIL CODE, Art. 2225.

[Exemplary damages] are an antidote so that the poison of wickedness may not run through the body politic. Octot v. Ybaez, etc., et al., 197 Phil. 76, 82 (1982). [The award of exemplary damages] would be allowed only if the guilty party acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. Octot v. Ybaez, supra note 87, at 85; citing Ong Yiu v. CA, 91 SCRA 223.
236 235

234

Patricio v. Hon. Leviste, G.R. No. L-51832, 26 April 1989.

is more than appropriate. We likewise deem the amount of Thousand in attorneys fees as suitable under the circumstances.

P500

WHEREFORE, the petitions are GRANTED. The assailed decisions of the Court of Appeals and the Regional Trial Court of Cauayan City, Branch 24, are hereby REVERSED and SET ASIDE. The instant petition for mandamus is hereby GRANTED and respondents are directed to immediately issue petitioners zoning clearances and mayors permits for 2004 to petitioners Respondents Caesar G. Dy, Felicisimo G. Meer, Bagnos Maximo, and Racma Fernandez-Garcia are hereby ORDERED to pay petitioners JOINTLY AND SEVERALLY the following amounts in damages: (1) FOUR MILLION PESOS (P4,000,000.00) as TEMPERATE DAMAGES237; (2) ONE MILLION PESOS (P1,000,000.00) as EXEMPLARY

DAMAGES; (3) FIVE HUNDRED THOUSAND PESOS (P 500,000.00) as ATTORNEYS FEES. Costs against respondents. SO ORDERED.

While Cauayan City may have been impleaded as a respondent in the petition for mandamus, liability for damages under Article 32 of the Civil Code falls only on the public officers and employees who infringed petitioners constitutional rights.

237

DANTE O. TINGA Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice Chairman

CONCHITA CARPIO MORALES Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

DIOSDADO M. PERALTA Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING

Associate Justice Chairman, Second Division

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairmans Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice B v est m .D 009 N EWSOUNDS B NC. a NC.,. J atches ROADCASTING G nd C .R. N os. 1 79411. B 70270 &. N ROADCASTING S atches f y, G .R or N .N ew S os. 1 ounds B 70270 & 1 roadcasting n 79411, A etwork ,2

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 147782

June 25, 2008

JUANITA A. AQUINO, petitioner, vs. TERESITA B. PAISTE, respondent. DECISION VELASCO, JR., J.: Conspiracy may be deduced from the mode, method, and manner by which the offense was perpetuated, or inferred from the acts of the accused persons themselves when such acts point to a joint purpose and design, concerted action, and community of interests. In this case before us, a series of overt acts of a co-conspirator and her earlier admission of participation documented in an amicable settlement she signed in the presence of counsel, all lead to the conclusion that the co-accused conspired to commit estafa. The Court of Appeals (CA) culled the facts this way, as established by the prosecution: At about 9:00 oclock in the morning of March 14, 1991, petitioner Juanita Aquino, Elizabeth Garganta, and another woman identified only as "Adeling," went to the house of respondent Teresita Paiste at 611 Pealosa St., Tondo, Manila. The children of respondent and petitioner were grade school classmates. After the usual pleasantries, petitioner started to convince respondent to buy a gold bar owned by a certain Arnold, an Igorot. After respondent was shown a sample of the gold bar, she agreed to go with them to a pawnshop in Tondo to have it tested. She was told that it was genuine. However, she told the three that she had no money. Regardless, petitioner and Garganta went back to the house of respondent the following day. The two convinced her to go with them to Angeles City, Pampanga to meet Arnold and see the gold bar. They reached Angeles City around 2:30 p.m. and met Arnold who showed them the gold bar. Arnold informed her that it was worth PhP 60,000. After respondent informed them again she had no money, petitioner continued to press her that buying the gold bar would be good investment. The three left and went home. On March 16, 1991, petitioner, Garganta, and Adeling returned to the house

of respondent. Again, they failed to convince her to buy the gold bar. On the next day, the three returned, this time they told respondent that the price was reduced to PhP 10,000. She agreed to go with them to Angeles City to meet Arnold once more. Arnold pretended to refuse the PhP 10,000 offer and insisted on PhP 50,000. On petitioners insistence, on March 18, 1991, the two went to Angeles City and bought the gold bar for PhP 50,000.1 On March 19, 1991, respondent had the gold bar tested and she was informed that it was fake.2 Respondent then proceeded to petitioners house to inform the latter that the gold bar was fake. Petitioner replied that they had to see Garganta, and that she had nothing to do with the transaction.3 On March 27, 1991, respondent brought petitioner to the National Bureau of Investigation (NBI)-NCR in the presence of a certain Atty. Tolentino where petitioner amicably promised respondent they would locate Garganta, and the document they both signed would be disregarded should they locate Garganta. The amicable settlement reads: In view of the acceptance of fault by MRS. JUANITA ASIOAQUINO of the case/complaint filed by MRS. TERESITA PAISTE before the NBI-National Capital Region for Swindling, Mrs. J. Aquino agreed to pay the complainant half the amount swindled from the latter. Said P25,000.00 offered by Mrs. J. Aquino as settlement for the case of Estafa will be paid by her through installment scheme in the amount of P1,000.00 per month beginning from the month of March, 1991 until fully paid. In witness whereof, the parties hereunto set their hands this 27th day of March 1991 at NBI-NCR, Taft Avenue, Manila. (Sgd.) MRS. JUANITA ASIO-AQUINO Respondent (Sgd.) MRS. TERESITA PAISTE Complainant Witnesses:

1. Signed (Illegible) 2. WAIVER OF RIGHT TO COUNSEL The undersigned accused/respondent hereby waives her right to counsel despite the recital of her constitutional rights made by NBI agent Ely Tolentino in the presence of a lawyer Gordon S. Uy. (Sgd.) MRS. JUANITA ASIO-AQUINO (Sgd.) MRS. TERESITA PAISTE4 On April 6, 1991, petitioner brought Garganta to the house of respondent. In the presence of Barangay Chairperson Pablo Atayde and a police officer, respondent pointed to Garganta as the person who sold the fake gold bar. Garganta was brought to the police station where there was a demand against Garganta alone. Subsequently, respondent filed a criminal complaint from which an Information against Garganta, petitioner, and three others for the crime of estafa in Criminal Case No. 92-99911 was filed before the Manila Regional Trial Court (RTC). The Information reads: That on or about March 18, 1991, in the City of Manila, Philippines, the said accused conspiring and confederating together with three others, whose true names, real identities and present whereabouts are still unknown and helping one another, did then and there willfully, unlawfully and feloniously defraud Teresita B. Paiste in the following manner to wit: the said accused, by means of false manifestations and fraudulent representations which they made to the said Teresita B. Paiste to the effect that a certain Arnold, an Igorot is selling a gold bar for P50,000.00, and by means of other similar deceits, induced and succeeded in inducing the said Teresita B. Paiste to buy the said gold bar and to give and deliver to said accused the total amount of P50,000.00, the herein accused well knowing that their manifestations and representations were all false and untrue and were made only for the purpose of obtaining, as in fact they did

obtain the said amount of P50,000.00, which once in their possession, they thereafter willfully, unlawfully and feloniously, with intent to defraud, misappropriated, misapplied and converted to their own personal use and benefit, to the damage and prejudice of the said Teresita B. Paiste in the aforesaid amount of P50,000.00, Philippine Currency.5 Accused Garganta and the others remained at large; only petitioner was arraigned and entered a plea of not guilty. Trial ensued with the prosecution presenting the testimonial evidence of private complainant, herein respondent, Yolanda Pomer, and Ely Tolentino. For her defense, petitioner testified along with Barangay Chairperson Atayde, Jose Aquino, and SPO1 Roberto Cailan. The prosecution presented as documentary evidence three (3) documents, one of which is the amicable settlement signed in the NBI, while the defense relied solely on its testimonial evidence. The Ruling of the Regional Trial Court On July 16, 1998, the trial court rendered a Decision convicting petitioner of the crime charged, the dispositive portion of which reads: WHEREFORE, the Court finds the accused Juanita Aquino guilty beyond reasonable doubt of the crime of estafa and hereby sentences her to suffer the indeterminate penalty of FIVE (5) YEARS OF PRISION CORRECCIONAL as minimum to NINE (9) YEARS OF PRISION MAYOR as maximum, and to indemnify the complainant, Teresita B. Paiste the sum of P50,000.00 with 12% interest per annum counted from the filing of the Information until fully paid, and to pay the costs of suit. SO ORDERED.6 The RTC found that petitioner conspired with Garganta, Adeling, and Arnold in committing the crime of estafa. The trial court likewise gave credence to the amicable settlement as additional proof of petitioners guilt as an amicable settlement in criminal cases is an implied admission of guilt. The Ruling of the Court of Appeals

Aggrieved, petitioner brought on appeal the above RTC decision before the CA, which was docketed as CA-G.R. CR No. 22511. After the parties filed their respective briefs, on November 10, 2000, the appellate court rendered the assailed Decision which affirmed in toto7 the July 16, 1998 RTC Decision. In affirming the trial courts findings and conclusions of law, the CA found that from the tenor of the amicable settlement, the investigation before the NBI did not push through as both parties came to settle the matter amicably. Nonetheless, the CA pointed out that petitioner was assisted, although unnecessarily, by an independent counsel, a certain Atty. Gordon S. Uy, during the proceedings. The CA held that petitioners mere bare allegation that she signed it under threat was insufficient for she presented no convincing evidence to bolster her claim. Consequently, the amicable settlement was admitted and appreciated as evidence against petitioner. Nevertheless, the CA ruled that even if the amicable settlement was not admissible or was totally disregarded, the RTC still did not err in convicting petitioner as it was indubitably shown by the prosecution through convincing evidence replete in the records that respondent conspired with the other accused through active participation in the commission of the crime of estafa. In fine, the CA found that the prosecution had indeed established the guilt of petitioner beyond reasonable doubt. Through the assailed April 6, 2001 Resolution, the appellate court denied petitioners motion for reconsideration. The Issues Hence, we have the instant petition under Rule 45 of the 1997 Rules of Civil Procedure, ascribing the following errors, which are essentially the same ones raised before the CA: I THE COURT A QUO ERRED IN NOT DECLARING AS UNCONSTITUTIONAL AND LACKING IN CERTAIN PRESCRIBED REQUIREMENTS THE INVESTIGATION CONDUCTED BY THE INVESTIGATOR OF THE NATIONAL BUREAU OF INVESTIGATION (NBI), OF ACCUSED-

APPELLANT AND COROLLARY THERETO, TO CONSIDER ANY AND ALL EVIDENCE PROCURED THEREBY TO BE INADMISSIBLE AS AGAINST ACCUSED-APPELLANT. II THE COURT A QUO ERRED IN NOT DECLARING AS UNCONSTITUTIONAL AND LACKING IN CERTAIN POSITIVE PARTICULARS AND STRICT COMPLIANCE THE MANNER IN WHICH THE WAIVER OF RIGHT TO COUNSEL HAD BEEN ASKED TO BE EXECUTED AND SUBSCRIBED BY ACCUSEDAPPELLANT. III THE COURT A QUO ERRED IN FINDING THAT THE ACCUSED-APPELLANT TOOK AN ACTIVE PART IN THE COMMISSION OF THE FELONY IMPUTED TO HER AND IN DECLARING HER GUILTY THEREFOR BEYOND REASONABLE DOUBT. IV THE COURT A QUO ERRED IN FINDING THAT CONSPIRACY EXISTED BETWEEN HEREIN ACCUSED-APPELLANT AND HER CO-ACCUSED, ELIZABETH GARGANTA DELA CRUZ.8 The Courts Ruling In gist, the instant petition proffers the twin issues on (1) whether the amicable settlement executed in the NBI is admissible as evidence, and (2) whether conspiracy has indeed been proven to convict petitioner of the crime of estafa. The instant petition hinges on the issue of the assessment of evidence and their admissibility. As consistently ruled in innumerable cases, this Court is not a trier of facts. The trial court is best equipped to make the assessment on said issues and, therefore, its factual findings are generally not disturbed on appeal unless the courts a quo are perceived to have overlooked, misunderstood, or misinterpreted certain facts or circumstances of weight, which, if properly considered, would affect the result of the case and warrant

a reversal of the decision involved. We do not find in the instant case any such reason to depart from this general principle. However, in the interest of substantial justice, we shall deal with the issues raised by petitioner. First Core Issue: Admissibility of amicable instrument Petitioner ascribes error to the CA when it gave due weight and consideration to the amicable settlement with waiver of right to counsel that she signed in the NBI during the custodial investigation. She claims she executed the agreement under threat and not freely and voluntarily, in violation of Sec. 12(1)9 of the Constitution which guarantees her rights under the Miranda Rule. We are not convinced. Custodial investigation involves any 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. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lend itself to eliciting incriminating statements, that the rule begins to operate.10 Republic Act No. (RA) 743811 has extended this constitutional guarantee to situations in which an individual has not been formally arrested but has merely been "invited" for questioning.12 Specifically, Sec. 2 of RA 7438 provides that "custodial investigation shall include the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed x x x." It is evident that when petitioner was brought by respondent before the NBINCR on March 27, 1991 to be investigated, she was already under custodial investigation and the constitutional guarantee for her rights under the Miranda Rule has set in. Since she did not have a lawyer then, she was provided with one in the person of Atty. Uy, which fact is undisputed. However, it can be gleaned from the amicable agreement, as aptly pointed out by the CA, that the custodial investigation on the inquiry or investigation for the crime was either aborted or did not push through as the parties, petitioner, and respondent agreed to amicably settle. Thus, the amicable settlement with a waiver of right to counsel appended was executed with both parties affixing their signatures on it in the presence of Atty. Uy and NBI

agent Atty. Ely Tolentino. Petitioners contention that her constitutional rights were breached and she signed the document under duress falls flat for the following reasons: First, it is undisputed that she was provided with counsel, in the person of Atty. Uy. The presumption that Atty. Uy is a competent and independent counsel whose interests are not adverse to petitioner has not been overturned. Petitioner has merely posed before the CA and now this Court that Atty. Uy may not be an independent and competent counsel. Without any shred of evidence to bolster such claim, it cannot be entertained. Second, petitioner made much of the fact that Atty. Uy was not presented as witness by the prosecution and that what petitioner and Atty. Uy supposedly conferred about was likewise not presented. Basic is the principle that consultation and information between counsel and client is privileged communication and the counsel may not divulge these without the consent of the client. Besides, a party in a case has full discretion to choose whoever it wants as testimonial witnesses to bolster its case. We cannot second guess the reason of the prosecution in not presenting Atty. Uys testimony, more so on account of the counsel-client privileged communication. Furthermore, petitioner could have asserted its right "to have compulsory process to secure the attendance of witnesses,"13 for which she could have compelled Atty. Uy to testify. She did not. Third, petitioner never raised any objection against Atty. Gordon Uys appointment during the time she was in the NBI and thereafter, when she signed the amicable settlement. As this Court aptly held in People v. Jerez, when "the accused never raised any objection against the lawyers appointment during the course of the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer"14 the accused is deemed to have engaged such lawyer. Verily, in the instant case, petitioner is deemed to have engaged Atty. Uy when she conferred with him and thereafter signed the amicable settlement with waiver of right to counsel in his presence. We do not see how the answer of NBI agent Atty. Tolentino upon cross-examination about the petitioners counsel in the NBI, could be evasive when the NBI agent merely stated the fact that an independent counsel, Atty. Uy, was provided petitioner. Fourth, when petitioner engaged Atty. Uy as her lawyer, she undoubtedly

executed the amicable settlement. Verily, she was provided with an independent counsel and such "right to counsel is intended to preclude the slightest coercion as would lead the accused to admit something false. The lawyer, however, should never prevent an accused from freely and voluntarily telling the truth."15 An amicable settlement is not and does not partake of the nature of an extrajudicial confession or admission but is a contract between the parties within the parameters of their mutually recognized and admitted rights and obligations. Thus, the presence of Atty. Uy safeguarded petitioners rights even if the custodial investigation did not push through and precluded any threat of violence, coercion, or intimidation. Moreover, while we hold in this case that petitioners Miranda rights were not violated, still we will not be remiss to reiterate what we held in People v. Malimit that the infractions of the so-called Miranda rights render inadmissible "only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, is not affected even if obtained or taken in the course of custodial investigation."16 An admission is an act, declaration or omission of a party as to a relevant fact,17 while confession is a declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein.18 Fifth, even granting arguendo that the amicable settlement is in the nature of an admission, the document petitioner signed would still be admissible since none of her constitutional rights were violated. Petitioners allegations of threat, violence, and intimidation remain but bare allegations. Allegations are not proof. Pertinently, this Court ruled in People v. Calvo: A confession is not rendered involuntary merely because defendant was told that he should tell the truth or that it would be better for him to tell the truth. Stated elsewise, telling the accused that it would be better for him to speak or tell the truth does not furnish any inducement, or a sufficient inducement, to render objectionable a confession thereby obtained, unless threats or promises are applied. These threats or promises which the accused must successfully prove in order to make his confession inadmissible, must take the form of violence, intimidation, a promise of reward or leniency.19 In fine, we agree with the courts a quo that even assuming arguendo that the

amicable settlement is not admissible, still the conviction of petitioner would be affirmed as conspiracy was duly proven by other pieces of evidence. Second Core Issue: Conspiracy duly proven It is petitioners strong contention in her last two assigned errors that conspiracy has not been proven to convict her of estafa. She asserts that there was no strong showing of any convincing and solidly conclusive proof that she took an active part in any phase of the transaction concerning the overt acts constituting estafa that has been imputed to her. She argues that whatever act that might have been imputed to her has always been through the request or insistence of either Garganta or respondent as the transcript of stenographic notes reveals. She points out that after she introduced Garganta to respondent in the morning of March 14, 1991, she almost immediately left them and she did not accompany Garganta when the latter went back to respondents house in the afternoon of March 14, 1991. And she avers that significantly, she did not remain in Pampanga after the completion of the transaction on March 18, 1991, but came to Manila with respondent. According to her, her non-participation in these two crucial meetings shows she was not part of any conspiracy to defraud respondent. We are not persuaded. Conspiracy is deemed to arise when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy need not be proven by direct evidence of prior agreement to commit the crime.20 In criminal law, where the quantum of evidence required is proof beyond reasonable doubt, direct proof is not essential to show conspiracyit may be deduced from the mode, method, and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint purpose and design, concerted action, and community of interest.21 It is common design which is the essence of conspiracyconspirators may act separately or together, in different manners but always leading to the same unlawful result. The character and effect of conspiracy are not to be adjudged by dismembering it and viewing its separate parts but only by looking at it as a wholeacts done to give effect to conspiracy may be, in fact, wholly innocent acts.22 Once proved, the act of one becomes the act of all. All the conspirators are answerable as co-principals regardless of the

extent or degree of their participation. To be held guilty as a co-principal by reason of conspiracy, the accused must be shown to have performed an overt act in pursuance or furtherance of the complicity. Mere presence when the transaction was made does not necessarily lead to an inference of concurrence with the criminal design to commit the crime of estafa. Even knowledge, acquiescence, or agreement to cooperate is not enough to constitute one as a party to a conspiracy because the rule is that neither joint nor simultaneous action is per se sufficient proof of conspiracy.23 In the instant case, the courts a quo unanimously held that conspiracy was duly proven. As aptly observed by the CA, the records are replete with instances to show that petitioner actively participated to defraud respondent. The following instances all point to the conclusion that petitioner conspired with others to commit the crime: First, petitioner was with her co-accused Garganta and Adeling when they went to respondents house on March 14, 1991 to tell her of the existence of a gold bar, showed her a sample, tried to convince respondent to buy one, and went to a pawnshop in Tondo to have the sample gold bar tested. Second, the following day, March 15, petitioner was again with her coaccused when they went to Angeles City to view the gold bar in the residence of Arnold, and participated in convincing respondent to raise PhP 50,000 for the purchase of the gold bar, and if respondent did not have money, to find a buyer. Third, on March 16, petitioner was again with her co-accused when they returned to the house of respondent to ask if she had found a buyer. Since she had not, they again pressed her to look for one. Fourth, on March 17, she with her co-accused again accompanied respondent to Angeles City and met with Arnold to convince him to accept PhP 10,000 as deposit, but were refused. Fifth, on March 18, respondent again pressed respondent to buy the gold bar until the latter finally succumbed and paid PhP 50,000. Petitioner even recounted the cash payment, wrapped it in newspaper, and handed the money herself to Arnold.

It is unquestionable that petitioner was not a passive observer in the five days from March 14 to 18, 1991; she was an active participant in inducing respondent to buy the gold bar. We find no cogent reason to alter the conclusions of the CA. Indeed, the records bear out that conspiracy was duly proven by the coordinated actions of petitioner and her companions. Clearly, petitioners contention that all she did was at the behest of either Garganta or respondent is belied by the fact that she took part in all the phases of the inducement right up to the purchase by respondent of the fake gold. If it was true that she had no part in the transaction, why would she still accompany Garganta to visit respondent on the 15th, 16th, 17th, and 18th of March 1991? Moreover, with trips to Pampanga made on the 15th, 17th, and 18th that take several hours, it is unfathomable that petitioner was only doing a favor to either Garganta or respondent, or to both. Ineluctably, after having been introduced to respondent, Garganta could have made the visits to respondent without tagging along petitioner. Yet, the facts clearly show that respondent could not have been thereby induced without petitioners active participation in encouraging respondent to buy the gold bar. Petitioner is the lynchpin upon whom respondents interest was stoked, and ultimately to succumb to the lure of gaining a fat profit by buying the gold bar. Moreover, the fact that petitioner went back on the 18th with respondent to Manila instead of staying in Pampanga does not preclude her active participation in the conspiracy as shown by the foregoing narration. It would have been strange to respondent if petitioner stayed in Pampanga after the transaction. Thus, petitioner indeed took active part in the perpetration of estafa. And, petitioner has not shown any convincing proof that she was not part of the transaction given the undisputed factual milieu of the instant case. Finally, it bears stressing that petitioner was the one who knows respondent. She introduced respondent to the other accused. WHEREFORE, the petition is DENIED for lack of merit. The CAs November 10, 2000 Decision and April 6, 2001 Resolution in CA-G.R. CR No. 22511 are hereby AFFIRMED IN TOTO. Costs against petitioner.

SO ORDERED. PRESBITERO J. VELASCO, JR. Associate Justice

WE CONCUR: LEONARDO A. QUISUMBING Associate Justice Chairperson ANTONIO T. CARPIO Associate Justice CONCHITA CARPIO MORALES Associate Justice

DANTE O. TINGA Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. LEONARDO A. QUISUMBING Associate Justice Chairperson

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO

Chief Justice

Republic of the Philippines Supreme Court Manila

EN BANC

THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, Petitioners,

G.R. No. 180906 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, LEONARDO-DE CASTRO, and BRION, JJ. Promulgated:

- versus -

RAYMOND MANALO and REYNALDO MANALO,

October 7, 2008

Respondents. x- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

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 19238 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.

238

Sec. 19 of the Rule on the Writ of Amparo provides for appeal, viz: Sec. 19. Appeal Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The appeal shall be given the same priority as in habeas corpus cases.

This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining Order (TRO)239 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)240 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 1241 of the 1987 Constitution.242 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
239 240

G.R. No. 179095 filed on August 23, 2007. 1987 PHIL. CONST. Art. VIII, 5(5) provides for the rule-making power of the Supreme Court, viz: Sec. 5. The Supreme Court shall have the following powers: (5) Promulgate rules concerning the protection and enforcement of constitutional ri ghts 241 1987 PHIL. CONST. Art. III, 1 provides in relevant part, viz: Sec. 1. No person shall be deprived of life, libertywithout due process of law 242 CA rollo, pp. 26-27.

under Sec. 26243 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. 18244 of the Amparo Rule; and (5) all other just and equitable reliefs.245 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.246

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:
243

Section 26 of the Rule on the Writ of Amparo provides, viz: Sec. 26. Applicability to Pending Cases. This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts. 244 Section 18 of the Rule on the Writ of Amparo provides, viz: Sec. 18. Judgment. The court shall render judgment within ten (10) days from the time the petition is submitted for decision. 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. 245 CA rollo, pp. 86-87. 246 Id. at 1-6.

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 latters authority to be express and made apparent on the face of the sworn compliance with this directive. SO ORDERED.247

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
247

Id. at 82-83.

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.248 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.249 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 barangay councilors, Pablo Cunanan and Bernardo Lingasa, with some soldiers and armed men.250

248

Exhibit D (Sinumpaang Salaysay para sa Hukuman ni Raymond Manalo), CA rollo, pp. 200-201; TSN, November 13, 2007, p. 47. 249 Exhibit D, CA rollo, pp. 200-201. 250 Id. at 201-202.

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.251 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 Reynaldos. 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 (Raymonds) room and it was his (Raymonds) turn to be beaten up in the other room. The soldiers asked him if he was a member of the New Peoples 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.252 In the next days, Raymonds interrogators appeared to be high officials as the soldiers who beat him up would salute them, call them sir, and treat them
251 252

Id. Id. at 202.

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.253 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.254 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
253

A Petition for Habeas Corpus was filed on May 12, 2006 in the Court of Appeals by the relatives of herein respondents. (CA-G.R. SP. No. 94431). The petition alleged that military personnel and CAFGU auxiliaries forcibly took petitioners from their homes in Bulacan on February 14, 2006. Impleaded as respondents were Lt. Gen. Hermogenes C. Esperon, then the Commanding General of the Philippine Army; Maj. Gen. Jovito Palparan, then the Commanding Officer, 7th Infantry Division, stationed in Luzon; M/Sgt. Rizal Hilario alias Rollie Castillo; and civilians Michael dela Cruz, Madning dela Cruz, Puti dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza, all CAFGU members. Respondents denied any involvement in the petitioners abduction and disappearance. After hearing, the Court of Appeals rendered a decision on June 27, 2007, viz: WHEREFORE, in view of the foregoing, this Court holds that respondents Madning de la Cruz, Puti de la Cruz, Pula de la Cruz, Rudy Mendoza and CAFGU members Michael de la Cruz and Randy Mendoza are illegally detaining Raymond and Reynaldo Manalo, and are hereby ordered to RELEASE said victims Raymond Manalo and Reynaldo Manalo within ten (10) days from receipt hereof; otherwise, they will be held in contempt of court. This is without prejudice to any penalty that may be imposed should they be found later by any other court of justice to be criminally, administratively, or civilly liable for any other act/s against the persons of aforenamed victims. (CA rollo, pp. 60-61) On July 18, 2007, the relatives of the petitioners appealed the decision to the Supreme Court. (G.R. No. 178614). Respondents filed a motion for reconsideration in the Court of Appeals. On August 13, 2007, the petitioners escaped from captivity. Consequently, they filed motions to withdraw the petition for habeas corpus in the CA and this Court as it had become moot and academic. (CA rollo, p. 101; rollo, pp. 54-55) 254 Exhibit D, CA rollo, pp. 200-201.

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.255 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.256 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.257

255 256

Id. at 203. TSN, November 13, 2007, p. 29. 257 Exhibit D, CA rollo, p. 203.

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.258 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 people259 had been detained in that bartolina, including his brother Reynaldo and himself.260 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.261 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.
258 259

They also examined respondents and gave them

Id. Daniel Mendiola; Oscar Leuterio; mag-asawang Teresa at Vergel; isang nagngangalang Mang Ipo at Ferdinand mula sa Nueva Ecija; isang taga-Bicol na ikinulong doon ng isa o dalawang araw lamang (siyay inilabas at hindi ko na nakitang muli); isang taga-Visayas (na ikinulong doon ng isa o dalawang araw; siyay inilabas at hindi ko na siya nakita); mga nagngangalang Abel, Jojo at isa pa mula sa Nueva Ecija (na tumagal doon ng isang araw at isang gabi, pagkatapos ay inilabas din); isang nagngangalang Bernard mula sa Hagonoy, Bulacan; ang apelyido ni Bernard ay tila Majas ngunit hindi ako sigurado sa apelyido niya. Nang dinala doon si Bernard, inilabas sina Mang Ipo at Ferdinand; dalawang lalaking may edad na, taga-Pinaud at dinukot sa poultry (tumagal lang sila ng mga isang araw at tapos inilabas at hindi ko na nakita uli). (CA rollo, pp. 203-204) 260 Exhibit D, CA rollo, pp. 203-204. 261 Id. at 204.

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.262 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 Hilarios men.263 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

262 263

Id. at 204-205. Id. at 205.

made to face Gen. Palparan. Raymond responded that he would not be because he did not believe that Gen. Palparan was an evil man.264 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, bastat sundin nyo 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.265

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 formers 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, Raymonds parents acceded. Hilario threatened Raymonds 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.266

264 265

Id.; TSN, November 13, 2007, pp. 36-38. Exhibit D, CA rollo, p. 205. 266 Id.

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.267 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.268 picture.269 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.270 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. During his testimony, Raymond identified Gen. Palparan by his

267 268

Id. Id. at 206. 269 TSN, November 13, 2007, p. 44; Exhibit F shows eights pictures of highest ranking officers of the AFP and PNP in their uniforms; Exhibit F-1 is the picture of Gen. Palparan identified by respondent Raymond Manalo, CA rollo, p. 214. 270 Exhibit D, CA rollo, p. 206.

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.271 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.272 The next day, Raymonds 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.273 After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other captives, Karen Empeo 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
271 272

Id. at 207. Id. 273 Id. at 207-208.

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.274 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.275 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.276 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
274 275

Id. at 208. Id. 276 Id. at 209.

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.277 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 Raymonds eyes.278 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 2007.279 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 itoy 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.
277 278

Id. Id. 279 Id.

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.280

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.281 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

280 281

Id. at 210-211. Id. at 211.

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.282 Reynaldo also executed an affidavit affirming the contents of Raymonds 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
282

Id.

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.283 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.284 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
283 284

Exhibit C (Sinumpaang Salaysay ni Reynaldo Manalo para sa Hukuman), CA rollo, pp. 196-197. TSN, November 13, 2007, pp. 85-90; Exhibit G is the background of the case of Raymond and Reynaldo Manalo, CA rollo, p. 216; Exhibits G-1 to G-2 are the report proper for Reynaldo Manalo containing a narration of his ordeal and complaints, and Dr. Molinos ph ysical findings, analysis and recommendations, CA rollo, pp. 217218; Exhibit G-3 are the pictures taken of Reynaldo Manalos scars, CA rollo, p. 219; Exhibits G-4 to G-5 are the report proper for Raymond Manalo with similar contents as Reynaldos report, CA rollo, pp. 220-221; Exhibits G-6 to G-7 are the pictures of Raymond Manalos scars, CA rollo, pp. 222-223.

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.285

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
285

CA rollo, pp. 112-113; rollo, pp. 94-95.

command directions of the AFP units in the field, nor in any way micromanage the AFP operations. The principal responsibility of the Secretary of National Defense is focused in providing strategic policy direction to the Department (bureaus and agencies) including the Armed Forces of the Philippines; 8. In connection with the Writ of Amparo issued by the Honorable Supreme Court in this case, I have directed the Chief of Staff, AFP to institute immediate action in compliance with Section 9(d) of the Amparo Rule and to submit report of such compliance Likewise, in a Memorandum Directive also dated October 31, 2007, I have issued a policy directive addressed to the Chief of Staff, AFP that the AFP should adopt the following rules of action in the event the Writ of Amparo is issued by a competent court against any members of the AFP: (1) to verify the identity of the aggrieved party; (2) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; (3) to identify witnesses and obtain statements from them concerning the death or disappearance; (4) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; (5) to identify and apprehend the person or persons involved in the death or disappearance; and (6) to bring the suspected offenders before a competent court.286

286

CA rollo, pp. 122 and 171; rollo, pp. 28-29.

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 Amparo has 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 Empeo 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.287

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, Empeo and Merino, which averred among others, viz: 10) Upon reading the allegations in the Petition implicating the 24 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 Empeo and Manuel Merino being held captive;
th

11) There was neither any reports of any death of Manuel Merino in the 24th IB in Limay, Bataan; 12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the Philippine National Police, Limay, Bataan regarding the alleged detentions or deaths and were informed that none was reported to their good office; 13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into the alleged beachhouse in Iba, Zambales also alleged to be a detention place where Sherlyn Cadapan, Karen Empeo and Manuel Merino were detained. As per the inquiry, however, no such

287

CA rollo, pp. 124-125; 177-178; rollo, pp. 29-31.

beachhouse was used as a detention place found to have been used by armed men to detain Cadapan, Empeo and Merino.288

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. 289 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.290 The 24th Infantry Battalion is part of the 7th Infantry Division.291 On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7th Infantry Division, Maj. Gen. Jovito Palaran,292 through his Assistant Chief of Staff,293 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; exCAA 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
288 289

CA rollo, pp. 191-192; rollo, 106-107. Id. at 107. 290 TSN, November 14, 2007, p. 25. 291 Id. at 84. 292 Id. at 36. 293 Id. at 40.

administrative liability of said auxiliaries, if any.294 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.295 Jimenez summoned all six implicated persons for the purpose of having them execute sworn statements and conducting an investigation on May 29, 2006.296 The investigation started at 8:00 in the morning and finished at 10:00 in the evening.297 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 investigated298 as according to Jimenez, the directive to him was only to investigate the six persons.299 Jimenez was beside Lingad when the latter took the statements.300 The six persons were not known to Jimenez as it was in fact his first time to meet them.301 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.302

294 295

Id. at 41. Id. at 92. 296 Id. at 46. 297 Id. at 44. 298 Id. at 46. 299 Id. at 80. 300 Id. at 28. 301 Id. at 50. 302 Id. at 55-56.

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, 2006.303 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, 2006.304 He then gave his report to the Office of the Chief of Personnel.305 As petitioners largely rely on Jimenezs Investigation Report dated June 1, 2006 for their evidence, the report is herein substantially quoted: III. BACKGROUND OF THE CASE 4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who were forcibly taken from their respective homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14 February 2006 by unidentified armed men and thereafter were forcibly disappeared. After the said incident, relatives of the victims filed a case for Abduction in the civil court against the herein suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the Citizen Armed Forces Geographical Unit (CAFGU). a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in (Exhibit B) states that he was at Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso, Bulacan doing the concrete building of a church located nearby his residence, together with
303 304

Id. at 57-61. Id. at 61-63. 305 Id. at 63.

some neighbor thereat. He claims that on 15 February 2006, he was being informed by Brgy. Kagawad Pablo Umayan about the abduction of the brothers Raymond and Reynaldo Manalo. As to the allegation that he was one of the suspects, he claims that they only implicated him because he was a CAFGU and that they claimed that those who abducted the Manalo brothers are members of the Military and CAFGU. Subject vehemently denied any participation or involvement on the abduction of said victims. b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in (Exhibit C) states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo being his neighbors are active members/sympathizers of the CPP/NPA and he also knows their elder Rolando Manalo @ KA BESTRE of being an NPA Leader operating in their province. That at the time of the alleged abduction of the two (2) brothers and for accusing him to be one of the suspects, he claims that on February 14, 2006, he was one of those working at the concrete chapel being constructed nearby his residence. He claims further that he just came only to know about the incident on other day (15 Feb 06) when he was being informed by Kagawad Pablo Kunanan. That subject CAA vehemently denied any participation about the incident and claimed that they only implicated him because he is a member of the CAFGU. c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit O) states that he is a resident of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a member of CAFGU based at Biak na Bato Detachment. That being a neighbor, he was very much aware about the background of the two (2) brothers Raymond and Reynaldo as active supporters of the CPP NPA in their Brgy. and he also knew their elder brother KUMANDER BESTRE TN: Rolando

Manalo. Being one of the accused, he claims that on 14 February 2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house of his aunt and he learned only about the incident when he arrived home in their place. He claims further that the only reason why they implicated him was due to the fact that his mother has filed a criminal charge against their brother Rolando Manalo @ KA BESTRE who is an NPA Commander who killed his father and for that reason they implicated him in support of their brother. Subject CAA vehemently denied any involvement on the abduction of said Manalo brothers. d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit E) states that he is a resident of Brgy. Marungko, Angat, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to him being his barriomate when he was still unmarried and he knew them since childhood. Being one of the accused, he claims that on 14 February 2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He claims that he was being informed only about the incident lately and he was not aware of any reason why the two (2) brothers were being abducted by alleged members of the military and CAFGU. The only reason he knows why they implicated him was because there are those people who are angry with their family particularly victims of summary execution (killing) done by their brother @ KA Bestre Rolando Manalo who is an NPA leader. He claims further that it was their brother @ KA BESTRE who killed his father and he was living witness to that incident. Subject civilian vehemently denied any involvement on the abduction of the Manalo brothers. e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit F) states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based at Biak na Bato, San Miguel, Bulacan. He claims that Raymond

and Reynaldo Manalo are familiar to him being their barrio mate. He claims further that they are active supporters of CPP/NPA and that their brother Rolando Manalo @ KA BESTRE is an NPA leader. Being one of the accused, he claims that on 14 February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan. That he vehemently denied any participation of the alleged abduction of the two (2) brothers and learned only about the incident when rumors reached him by his barrio mates. He claims that his implication is merely fabricated because of his relationship to Roman and Maximo who are his brothers. f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in (Exhibit G) states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a CAFGU member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that he knew very well the brothers Raymond and Reynaldo Manalo in their barangay for having been the Tanod Chief for twenty (20) years. He alleged further that they are active supporters or sympathizers of the CPP/NPA and whose elder brother Rolando Manalo @ KA BESTRE is an NPA leader operating within the area. Being one of the accused, he claims that on 14 Feb 2006 he was helping in the construction of their concrete chapel in their place and he learned only about the incident which is the abduction of Raymond and Reynaldo Manalo when one of the Brgy. Kagawad in the person of Pablo Cunanan informed him about the matter. He claims further that he is truly innocent of the allegation against him as being one of the abductors and he considers everything fabricated in order to destroy his name that remains loyal to his service to the government as a CAA member. IV. DISCUSSION 5. Based on the foregoing statements of respondents in this particular case, the proof of linking them to the alleged abduction

and disappearance of Raymond and Reynaldo Manalo that transpired on 14 February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, is unsubstantiated. Their alleged involvement theretofore to that incident is considered doubtful, hence, no basis to indict them as charged in this investigation. Though there are previous grudges between each families (sic) in the past to quote: the killing of the father of Randy and Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo, this will not suffice to establish a fact that they were the ones who did the abduction as a form of revenge. As it was also stated in the testimony of other accused claiming that the Manalos are active sympathizers/supporters of the CPP/NPA, this would not also mean, however, that in the first place, they were in connivance with the abductors. Being their neighbors and as members of CAFGUs, they ought to be vigilant in protecting their village from any intervention by the leftist group, hence inside their village, they were fully aware of the activities of Raymond and Reynaldo Manalo in so far as their connection with the CPP/NPA is concerned. V. CONCLUSION

6. Premises considered surrounding this case shows that the alleged charges of abduction committed by the above named respondents has not been established in this investigation. Hence, it lacks merit to indict them for any administrative punishment and/or criminal liability. It is therefore concluded that they are innocent of the charge. VI. RECOMMENDATIONS

7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated from the case.

8. Upon approval, this case can be dropped and closed.306

In this appeal under Rule 45, petitioners question the appellate courts assessment of the foregoing evidence and assail the December 26, 2007 Decision on the following grounds, viz: I.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE, UNCORROBORATED, CONTRADICTED, AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND MANALO.

II.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH TO THE MANALO BROTHER(S) AND TO THE COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL REPORTS OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE COURT OF APPEALS ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND REPORTS OF ANY TREATMENT GIVEN OR RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO THE
306

Exhibit 3-C, CA rollo, pp. 238-240.

MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY AND CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.307

The case at bar is the first decision on the application of the Rule on the Writ of Amparo (Amparo Rule). Let us hearken to its beginning. The adoption of the Amparo Rule surfaced as a recurring proposition in the recommendations that resulted from a two-day National Consultative Summit on Extrajudicial Killings and Enforced Disappearances sponsored by the Court on July 16-17, 2007. The Summit was envisioned to provide a broad and fact-based perspective on the issue of extrajudicial killings and enforced disappearances,308 hence representatives from all sides of the political and social spectrum, as well as all the stakeholders in the justice system309 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.310 It was an exercise for the first time of the Courts expanded power to promulgate rules to protect our peoples constitutional rights, which made its maiden appearance in the 1987 Constitution in response to the Filipino experience of the martial law regime.311 As the Amparo Rule was intended to address the intractable problem

307 308

Rollo, pp. 35-36. Rule on the Writ of Amparo: The Rationale for the Writ of Amparo, p. 43. 309 Id. 310 Rule on the Writ of Amparo: Annotation, p. 47. 311 Id. Article VIII, 5(5) of the 1987 Constitution provides for this rule-making power, viz: Sec. 5. The Supreme Court shall have the following powers: (5) Promulgate rules concerning the protection and enforcement of constitutional rights

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.312 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.313 The writ of amparo originated in Mexico. protection in Spanish.314 Amparo literally means

In 1837, de Tocquevilles 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.315 One of them, Manuel Crescencio Rejn, drafted a constitutional provision for his native state, Yucatan,316 which granted judges the power to protect all persons in the enjoyment of their constitutional and legal rights. This idea was incorporated into the national constitution in 1847, viz: The federal courts shall protect any inhabitant of the Republic in the exercise and preservation of those rights granted to him by
312

Rule on the Writ of Amparo: Annotation, p. 48. This is the manner the term is used in United Nations instruments. 313 Rule on the Writ of Amparo: Annotation, p. 48. This is the definition used in the Declaration on the Protection of All Persons from Enforced Disappearances. 314 Barker, R., Constitutionalism in the Americas: A Bicentennial Perspective, 49 University of Pittsburgh Law Review (Spring, 1988) 891, 906. 315 Id., citing Zamudio, F., A Brief Introduction to the Mexican Writ of Amparo, 9 California Western International Law Journal (1979) 306, 309. 316 At the time it adopted Rejns amparo, Yucatan had separated itself from Mexico. After a few months, the secession ended and the state resumed its place in the union. ( Barker, R., supra at 906.)

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.317

Since then, the protection has been an important part of Mexican constitutionalism.318 If, after hearing, the judge determines that a constitutional right of the petitioner is being violated, he orders the official, or the officials 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.319 The writ of amparo then spread throughout the Western Hemisphere, gradually evolving into various forms, in response to the particular needs of each country.320 It became, in the words of a justice of the Mexican Federal Supreme Court, one piece of Mexicos self-attributed task of conveying to the worlds legal
317 318

Acta de Reformas, art. 25 (1847) (amending Constitution of 1824). Acta de Reformas, art. 25 (1847) (amending Constitution of 1824); CONST. of 1857, arts. 101, 102 (Mex.); CONST. art. 107 (Mex.). 319 Barker, R., supra at 906-907. See also Provost, R. Emergency Judicial Relief for Human Rights Violations in Canada and Argentina, University of Miami Inter -American Law Review (Spring/Summer, 1992) 693, 701-702. 320 Rule on the Writ of Amparo: Annotation, p. 45. See Article 107 of the Constitution of Mexico; Article 28(15) of the Constitution of Ecuador; Article 77 of the Constitution of Paraguay; Article 43 of the Constitution of Argentina; Article 49 of the Constitution of Venezuela; Article 48 (3) of the Constitution of Costa Rica; and Article 19 of the Constitution of Bolivia.

heritage that institution which, as a shield of human dignity, her own painful history conceived.321 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.322 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.323 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.324 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
321

Provost, R., supra at 698, citing Ramirez, F., The International Expansion of the Mexican Amparo, 1 InterAmerican Law Review (1959) 163, 166. Rule on the Writ of Amparo: Annotation, p. 45; see also Zagaris, B., The Amparo Process in Mexico, 6 Mexico Law Journal (Spring 1998) 61, 66 and Provost, R., supra at 708-709. Rule on the Writ of Amparo: Annotation, p. 45. Brewer-Carias, A., The Latin American Amparo Proceeding and the Writ of Amparo in the Philippines, Second Distinguished Lecture, Series of 2007, Supreme Court, Philippine Judicial Academy in coordination with the Philippine Association of Law Schools, March 7, 2008.

322

323 324

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.325 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.326 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 102,327 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
325 326

See 1987 PHIL. CONST. Art. III, 13 & 15; Art. VII, 18; Art. VIII, 5(1). 5 U.S. 137 (1803). See Gormley, K. Judicial Review in the Americas: Comments on the United States and Mexico, 45 Duquesne Law Review (Spring, 2007) 393. Rule on the Writ of Amparo: Annotation, p. 47.

327

reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.328 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 Order329 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, 2007,330 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. motion.
328

The Court granted their

Deliberations of the Committee on the Revision of the Rules of Court, August 10, 2007; August 24, 2007; August 31, 2007; and September 20, 2008. 329 G.R. No. 179095. 330 CA rollo, p. 3.

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 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.331

In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners cause of action, to determine whether the evidence presented is metal-strong to satisfy the degree of proof required. Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz: Section 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof. (emphasis supplied)

Sections 17 and 18, on the other hand, provide for the degree of proof required, viz:
331

Rollo, p. 35.

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.332 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.333 (N)ilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol
332 333

Ferancullo v. Ferancullo, Jr., A.C. No. 7214, November 30, 2006, 509 SCRA 1. CA rollo, p. 210.

ni Manuel.334 May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas.335 Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato para tanggalin ang mga kadena.336 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.337 We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalos affidavit and testimony, viz: the abduction was perpetrated by armed men who were sufficiently identified by the petitioners (herein respondents) to be military personnel and CAFGU auxiliaries. Raymond recalled that the six armed men who barged into his house through the rear door were military men based on their attire of fatigue pants and army boots, and the CAFGU auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, all members of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served as lookouts during the abduction. Raymond was sure that three of the six military men were Ganata, who headed the abducting team, Hilario, who drove the van, and George. Subsequent incidents of their long captivity, as narrated by the petitioners, validated their assertion of the participation of the elements of the 7th Infantry Division, Philippine Army, and their CAFGU auxiliaries. We are convinced, too, that the reason for the abduction was the suspicion that the petitioners were either members or sympathizers of the NPA, considering that the abductors were looking

334 335

Id. Id. 336 Id. at 203. 337 Id. at 211.

for Ka Bestre, who turned out to be Rolando, the brother of petitioners. The efforts exerted by the Military Command to look into the abduction were, at best, merely superficial. The investigation of the Provost Marshall of the 7th Infantry Division focused on the one-sided version of the CAFGU auxiliaries involved. This one-sidedness might be due to the fact that the Provost Marshall could delve only into the participation of military personnel, but even then the Provost Marshall should have refrained from outrightly exculpating the CAFGU auxiliaries he perfunctorily investigated Gen. Palparans 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. Palparans 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. Hilarios 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.338 We reject the claim of petitioners that respondent Raymond Manalos statements were not corroborated by other independent and credible pieces of evidence.339 Raymonds 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,340 also corroborate respondents accounts of the torture they endured while in detention. Respondent Raymond Manalos 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,341 firms up respondents story that they were detained for some time in said military facility. In Ortiz v. Guatemala,342 a case decided by the Inter-American Commission on Human Rights, the Commission considered similar evidence, among others, in finding that complainant Sister Diana Ortiz was abducted and tortured by agents of the Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured in early November 1989. The Commissions findings of fact were mostly based on the consistent and credible statements, written and oral, made by Sister Ortiz regarding her ordeal.343
338 339

These statements were supported by her

Rollo, pp. 74-76. Id. at 40. 340 CA rollo, pp. 219, 222-224. 341 TSN, November 14, 2007, p. 66. 342 Case 10.526, Report No. 31/96, Inter-Am.C.H.R.,OEA/Ser.L/V/II.95 Doc. 7 rev. at 332 (1997).
343

Id. at par. 49.

recognition of portions of the route they took when she was being driven out of the military installation where she was detained.344 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.345 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 word346 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
344 345

Id. Id. at par. 50. 346 Rollo, p. 182.

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.347 (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.348 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 places349 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. Enrile350 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

347 348

Id. Id. at 183. 349 Respondents cite 1987 PHIL. CONST. Art. III, 12(2) which provides, viz: (2) No torture, force, violence threat, 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. 350 225 Phil. 191 (1986).

liberty351 such as a requirement to report under unreasonable restrictions that amounted to a deprivation of liberty352 or being put under monitoring and surveillance.353 In sum, respondents assert that their cause of action consists in the threat to their right to life and liberty, and a violation of their right to security. Let us put this right to security under the lens to determine if it has indeed been violated as respondents assert. The right to security or the right to security of person finds a textual hook in Article III, Section 2 of the 1987 Constitution which provides, viz: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge

At the core of this guarantee is the immunity of ones person, including the extensions of his/her person houses, papers, and effects against government intrusion. Section 2 not only limits the states power over a persons home and possessions, but more importantly, protects the privacy and sanctity of the

351 352

Rollo, pp. 182-183. Id. at 183. 353 Id.

person himself.354 The purpose of this provision was enunciated by the Court in People v. CFI of Rizal, Branch IX, Quezon City, viz: 355 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. (Taada 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 mans 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.356 (emphases supplied)

While the right to life under Article III, Section 1357 guarantees essentially the right to be alive358 - 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
354

Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY (2003) 162. 355 No. L-41686, November 17, 1980, 101 SCRA 86. 356 Id. at 100-101. 357 1987 PHIL. CONST. Art. III, 1 provides, viz: Sec. 1. No person shall be deprived of life, liberty, or property without due process of law 358 But see Bernas, supra at 110. The constitutional protection of the right to life is not just a protection of the right to be alive or to the security of ones limb against physical harm.

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 mans existence.359 In a broad sense, the right to security of person emanates in a persons 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.360 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.361 It is the right to security of person as

359

Separate Opinion of Chief Justice Reynato S. Puno in Republic v. Sandiganbayan, 454 Phil. 504 (2003). Sandifer, D. and L. Scheman, THE FOUNDATION OF FREEDOM (1966), pp. 44-45. Schmidt, C., An International Human Right to Keep and Bear Arms, 15 William and Mary Bill of Rights Journal (February, 2007) 983, 1004.

360

361

the word security itself means freedom from fear.362 Article 3 of the UDHR provides, viz: Everyone has the right to life, liberty and security of person.363 (emphasis supplied) In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) also provides for the right to security of person, viz: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. (emphasis supplied) The Philippines is a signatory to both the UDHR and the ICCPR. In the context of Section 1 of the Amparo Rule, freedom from fear is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from being baseless to well-founded as people react differently. The degree of fear can vary from one person to
362

Id., citing Websters Seventh New Collegiate Dictionary 780 (1971). The U.N. Declaration on the Protection of All Persons from Enforced Disappearance also provides for the right to security under Article 2, viz: 2. Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life. ( emphasis supplied) Various international human rights conventions and declarations affirm the right to security of person, including the American Convention on Human Rights; European Convention on Human Rights; African Charter; Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women; American Declaration of the Rights and Duties of Man, African Womens Protocol, and the U.N. Declaration on the Elimination of Violence against Women.

363

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.364 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, ones body cannot be searched or invaded without a search warrant.365 Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person.366 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
364

Section 1 of the Rule on the Writ of Amparo provides, viz: Section 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. (emphasis supplied)

365 366

People v. Aruta, 351 Phil. 868 (1998). Book Two, Title Eight, Crimes against Persons, of the Revised Penal Code consists of two chapters: Chapter One Destruction of Life, and Chapter Two Physical Injuries.

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 aforediscussed. 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.367 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
367

(App. No.26853/04), ECtHR Judgment of July 13, 2006.

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.368 (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: 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
368

Id. at pars.196-197.

the Elimination of All Forms of Discrimination Against Women). These rights and freedoms include . . . the right to liberty and security of person.369

Third, the right to security of person is a guarantee of protection of ones 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.370 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

369

General Recommendation No. 19 on Violence against Women of the Committee on the Elimination of Discrimination Against Women. Adoption of the Report, U.N. Committee on the Elimination of Discrimination against Women, 11th Sess., Agenda Item 7, at para. 8, U.N. Doc. CEDAW/C/1992/L.1/Add.15 (1992); see also Lai, S. and Ralph, R., Female Sexual Autonomy and Human Rights, 8 Harvard Human Rights Journal (Spring, 1995) 201, 207-208. 1987 PHIL. CONST. Art. II, 11, provides, viz: Sec. 11. The State values the dignity of every human person and guarantees full respect for human rights.

370

Inter-American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case,371 viz: (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.372

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 Committee373 in not a few cases involving Article 9374 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,375 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:
371 372

I/A Court H.R. Velsquez Rodrguez Case, Judgment of July 29, 1988, Series C No. 4. Id. at par. 177. 373 Created under Article 28 of the ICCPR as the treaty-based body charged with the authoritative interpretation of the ICCPR. See Russell-Brown, S., Out of the Crooked Timber of Humanity: The Conflict Between South Africas Truth and Reconciliation Commission and International Human Rights Norms Regarding Effective Remedies, 26 Hastings International and Comparative Law Review (Winter 2003) 227.
374

The ICCPR provides in Article 9(1), 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) 375 Communication No. 195/1985, U. N. Doc. CCPR/C/39/D/195/1985 (1990).

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 prparatoires 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.376 (emphasis supplied) The Paez ruling was reiterated in Bwalya v. Zambia,377 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,378 involving discrimination, intimidation and persecution of opponents of the ruling party in that state; Tshishimbi v. Zaire,379 involving the abduction of the complainants husband who was a supporter of
376 377

Id. at , par. 5.5. Communication No. 314/1988, U.N. Doc. CCPR/C/48/D/314/1988 (1993). Communication No. 468/1991, U.N. Doc. CCPR/C/49/D/468/1991 (1993). Communication No. 542/1993, U.N. Doc. CCPR/C/53/D/542/1993 (1996).

378 379

democratic reform in Zaire; Dias v. Angola,380 involving the murder of the complainants partner and the harassment he (complainant) suffered because of his investigation of the murder; and Chongwe v. Zambia,381 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.382 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.383 In this case, the claimants son had been arrested by state authorities and had not been seen since. The familys requests for information and investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her sons 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
380

Communication No. 711/1996, U.N. Doc. CCPR/C/68/D/711/1996 (2000). Communication No. 821/1998, U.N. Doc. CCPR/C/70/D/821/1998 (2000). Powell, R., The Right to Security of Person in European Court of Human Rights Jurisprudence, 6 European Human Rights Law Review (2007) 649, 652-653. Kurt v. Turkey (1999) 27 E.H.R.R. 373.

381

382

383

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.384 (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 Raymonds 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

384

Id. at pars. 122 and 123.

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.385

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 Empeo, 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.386 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,

385 386

CA rollo, p. 210. Rollo, p. 182

tortured, and this time, even executed. These constitute threats to their liberty, security, and life, actionable through a petition for a writ of amparo. Next, the violation of the right to security as protection by the government. Apart from the failure of military elements to provide protection to respondents by themselves perpetrating the abduction, detention, and torture, they also miserably failed in conducting an effective investigation of respondents abduction as revealed by the testimony and investigation report of petitioners own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division. The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians whom he met in the investigation for the first time. He was present at the investigation when his subordinate Lingad was taking the sworn statements, but he did not propound a single question to ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test the alibis given by the six implicated persons nor for the family or neighbors of the respondents. In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the event the writ of amparo is issued by a competent court against any members of the AFP, which should essentially include verification of the identity of the aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and securing statements from them; determination of the cause, manner, location and time of death or disappearance; identification and

apprehension of the person or persons involved in the death or disappearance; and bringing of the suspected offenders before a competent court.387 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.388 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.

387 388

Rollo, pp. 28-29. Rollo, pp. 29-31. The directives issued by the petitioners are in line with Article 13 of the 1992 U.N. Declaration on Enforced Disappearances which states that, any person having knowledge or legitimate interest who alle ges that a person has been subjected to enforced disappearance has the right to complain to a competent and independent state authority and to have that complaint promptly, thoroughly and impartially investigated by the authority.

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.389 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
389

Rollo, pp. 44-45.

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,390 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
390

84 Phil. 127 (1949).

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.

REYNATO S. PUNO Chief Justice

WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO

ANTONIO T. CARPIO

Associate Justice

Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA Associate Justice Associate Justice

RUBEN T. REYES Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice