[G.R. NO.

150877 : May 4, 2006]

ELIDAD KHO and VIOLEA KHO v. HON. ENRI!O LAN"ANA#, $%&'(d(n) *+d)& ,- ./& R! ,- Man(0a
Culled from the records are the following antecedent facts:
Shun Yih Chemistry Factory (SYCF), a business existing and operating in Taiwan and engaged in the manufacture and
sale of Chin Chun Su CreamsCosmetics, appointed Young Factor !nterprises in the "hilippines, owned and operated
by #uintin Cheng also $nown as %ho Seng &io$, as its distributor of Chin Chun Su products in the "hilippines for a
term of two years beginning '()*+
'
#uintin Cheng registered with the ,ureau of Food and -rugs (,F.-) as distributor
of Chin Chun Su products+ #uintin Cheng subse/uently secured a supplemental registration for Chin Chun Su and
de0ice+
1
This supplemental registration was ordered cancelled by the ,ureau of "atents, Trademar$s and Technology
Transfer
2
on the ground of failure of the registrant to file the re/uired affida0it of non3use as re/uired by Section '1 of
4epublic .ct 5o+ '66, as amended+
7
5otwithstanding this cancellation, #uintin Cheng executed on 28 9anuary '((8 an .ssignment of a 4egistered
Trademar$
:
and a Supplementary -eed of .ssignment
6
dated 1: 5o0ember '((' wherein he sold all his right, title,
interest and goodwill in the trademar$ Chin Chun Su and de0ice to petitioner !lidad %ho+
;n the meantime, animosity arose between SYCF and #uintin Cheng resulting in the termination of their
distributorship agreement on 28 <ctober '((8+
)
Conse/uently, on 28 5o0ember '((8, SYCF appointed respondent Summer0ille =eneral >erchandising, represented
by .ng Tiam Chay and ?ictor Chua, as its exclusi0e importer, re3pac$er and distributor of Chin Chun Su products in
the "hilippines
*
for a period of fi0e years or until >ay 188:+
SYCF further executed a Special "ower of .ttorney dated '' September '((' in fa0or of Summer0ille =eneral
>erchandising granting it the authority to file complaints against usurpers of Chin Chun Su trademar$stradename+
(
From the foregoing incidents arose se0eral @udicial and /uasi3@udicial proceedings+
1) Civil Case No. Q-91-10926 before the Regional Trial Court (RTC) of Quezon Cit! "ran#h 90
<n 18 -ecember '((', !lidad %ho%!C Aaboratory filed a Complaint for ;n@unction and -amages against .ng Tiam
Chay and Summer0ille =eneral >erchandising before the 4TC of #ueBon City, ,ranch (8, doc$eted as Ci0il Case 5o+
#3('3'8(16+ "laintiff therein !lidad %ho%!C Aaboratory sought to en@oin defendants .ng Tiam Chay and Summer0ille
=eneral >erchandising from using the name Chin Chun Su in their cream products+
<n 11 9anuary '((2, a decision in Ci0il Case 5o+ #3('3'8(16 was rendered, the dispositi0e portion of which pro0ides:
.CC<4-;5=AY, @udgment is hereby rendered:
'+ -eclaring that plaintiff is not legally authoriBed to use the trademar$ CC&;5 C&D5 SDC and upholding the right of
defendant Summer0ille =eneral >erchandising E Co+ to use said trademar$ as authoriBed by Shun Yih Chemistry
Factory of TaiwanF
1+ -eclaring plaintiff to ha0e the right to use the copyright claim on C<?.A F.C;.A C4!.> C<5T.;5!4C.S!C by
0irtue of Certificate of Copyright 4egistration 5o+ 26*) issued by the 5ational Aibrary on >ay 12, '(('F
2+ 5o award of damagesF
7+ Counsels for plaintiff and defendants are awarded "):,888+88 each as attorneyGs feesF andcralawlibrary
:+ ,oth parties to pay proportionate fees+
'8
,oth parties appealed the 4TC decision to the Court of .ppeals, doc$eted as C.3=+4+ C? 5<+ 7*872 entitled, C!lidad
C+ %ho, doing business under the style of %!C Cosmetic Aaboratory 0+ Summer0ille =eneral >erchandising and Co+, et
al+C ;n a decision
''
dated 11 5o0ember '(((, the appellate court affirmed in toto the decision of the trial court+
'1
!lidad
%ho ele0ated the case to this Court, doc$eted as =+4+ 5o+ '77'88+ ;n a resolution dated 1* .ugust 1888, we denied
the petition+ He held that:
The issue is who, between petitioner !lidad C+ %ho and respondent Summer0ille =eneral >erchandising and Company
has the better right to use the trademar$ CChin Chun SuC on their facial cream productIcralawlibrary
He agree with both the Court of .ppeals and the trial court that Summer0ille =eneral >erchandising and Company
has the better right to use the trademar$ CChin Chun SuC on its facial cream product by 0irtue of the exclusi0e
importation and distribution rights gi0en to it by Shun Yih Chemistry Factory of Taiwan on 5o0ember 18, '((8 after
the latter cancelled and terminated on <ctober 28, '((8 its Sole -istributorship .greement with one #uintin Cheng,
who assigned and transferred his rights under said agreement to petitioner !lidad C+ %ho on 9anuary 2', '((8+
.s correctly held by the Court of .ppeals, petitioner %ho is not the author of the trademar$ CChin Chun SuC and his
only claim to the use of the trademar$ is based on the -eed of .greement executed in his fa0or by #uintin Cheng+ ,y
0irtue thereof, he registered the trademar$ in his name+ The registration was a patent nullity because petitioner is not
the creator of the trademar$ CChin Chun SuC and, therefore, has no right to register the same in his name+
Furthermore, the authority of #uintin Cheng to be the sole distributor of Chin Chun Su in the "hilippines had already
been terminated by Shun Yih Chemistry of Taiwan+ Hithal, he had no right to assign or to transfer the same to
petitioner %ho+
H&!4!F<4!, the instant petition is hereby denied due course+
'2
2) "$%& Cos'eti# Case No. C(-0)0-91
.t the other end of the spectrum, due to the proliferation of fa$e Chin Chun Su products, Summer0ille =eneral
>erchandising filed a Complaint
'7
before the ,F.- against %!C Cosmetic Aaboratory owned by !lidad %ho+
;n a resolution of the ,F.- dated 7 February '((1, it ruled that:
H&!4!F<4!, the brand name clearance of CCS in fa0or of %!C is recalled and cosmetic registration number -43
J6''23)* dtd '''))* is T!>"<4.4;AY C.5C!AA!- until %!C applies to change or amend the brand name CCS it is
now using+ For this purpose, %!C is hereby ordered to retrie0e all locally produced Chin Chun Su "earl Cream for
relabelling as soon as the amendment of its brand name has been appro0ed by this ,ureau with the corresponding
amended Certificate of 4egistration+
Summer0illeGs application to register (renew or reinstate) CCS >edicated Cream under -43J6''23)* in the name of
Shun Yih Chemistry Factory is herewith appro0ed for processing at ,F.-3"roduct Ser0ices -i0ision+
':
*) Cri'inal Case No. 00-1+*261 before the RTC of (anila! "ran#h 1
This is the case filed before the 4TC of >anila, ,ranch ', entitled, C"eople of the "hilippines 0+ !lidad and ?ioleta %ho
and 4oger %ho,C pursuant to the -<9 4esolution in ;+S+ 5o+ 88.3812(6 and ;+S+ 5o+ 88,3'8()2, ordering the filing of
a criminal complaint against !lidad, 4oger and ?ioleta %ho+
'6
"rior to the filing of Criminal Case 5o+ 883'*216' before the 4TC of >anila, ,ranch ', on '* 9anuary 1888, ?ictor
Chua, representing Summer0ille =eneral >erchandising, filed a Complaint for Dnfair Competition, doc$eted as ;+S+ 5o+
88.3812(6 entitled, CSummer0ille =eneral >erchandising, represented by ?ictor Chua 0+ !lidad and ?ioleta %ho,C
before the <ffice of the City "rosecutor of >anila+
!lidad and ?ioleta %ho filed their counter3affida0it in the Complaint for Dnfair Competition which ser0ed as their
countercharge against .ng Tiam Chay and ?ictor Chua, li$ewise for Dnfair Competition, doc$eted as ;+S+ 5o+ <<,3
'8()2+
<n 1( >arch 1888, the <ffice of the City "rosecutor granted the consolidation of both ;+S+ 5o+ 88.3812(6 and ;+S+ 5o+
88,3'8()2+ <n 1: .pril 1888, .ssistant City "rosecutor 4ector >acapagal rendered a @oint resolution dismissing both
the Complaint and countercharge+ This resolution of dismissal was re0ersed by the re0iew resolution
')
dated 2' >ay
1888 issued by .ssistant City "rosecutor !lmer Calledo who directed the filing of an information against !lidad %ho,
4oger %ho and ?ioleta %ho for 0iolation of Section '6*+2(a) in relation to Sections '6* and ')8, 4epublic .ct 5o+ *1(2
(The ;ntellectual "roperty Code)+
'*
<n ') .ugust 1888, -epartment of 9ustice (-<9) Dndersecretary 4egis "uno issued
a resolution
'(
dismissing the "etition for 4e0iew filed by !lidad and ?ioleta %ho and upholding the ruling of .ssistant
City "rosecutor Calledo, directing the filing of charges against the %hos+ !lidad and ?ioleta %ho filed a motion for
reconsideration, and in a complete turnabout, on 1* September 188', a resolution
18
was issued by then -<9 Secretary
&ernando "ereB again dismissing the Complaint and countercharge in ;+S+ 5o+ 88.3812(6 and ;+S+ 5o+ 88,3'8()2 for
lac$ of merit+ Summer0ille =eneral >erchandising accordingly filed a motion for reconsideration of this -<9 resolution
dated 18 September 188'+
;n 0iew of the latest -<9 resolution ordering the dismissal of the complaint of Summer0ille =eneral >erchandising
against the %hos, the 4TC of >anila, ,ranch ', issued an <rder dated 17 <ctober 188' directing the dismissal of the
Complaint in Criminal Case 5o+ 883'*216'+
1'
Summer0ille =eneral >erchandising filed with the 4TC of >anila, ,ranch
', a motion for reconsideration of its <rder of dismissal of Criminal Case 5o+ 883'*216'+ For their part, !lidad and
?ioleta %ho also filed with the same court a supplemental motion insisting that the <rder dismissing Criminal Case 5o+
883'*216' cannot be set aside because to do so would, in effect, reinstate the said criminal case and would already
constitute double @eopardy+ .cting on these motions, the 4TC of >anila, ,ranch ', issued an <rder dated 1' .ugust
1881 resol0ing the motions in the following manner:
The foregoing duly established facts indubitably supports accusedGs contention that a re3filing KoLf the ;nformation
would put them in double @eopardy+ .s ruled by the Supreme Court in >arcelo 0+ Court of .ppeals, 12: SC4. 2(,
upon withdrawal of the ;nformation, which is the logical conse/uence of the grant of the >otion to Hithdraw, there no
longer remained any case to dismiss+
.ccordingly, finding merit in the >otion for 4econsideration, the same is hereby granted+
The information against accused is hereby dismissed+
The Cler$ of Court is hereby directed to return to the accused the cash bonds posted by the latter for their pro0isional
liberty upon presentation of the re/uisite receipts+
The ruling renders the remaining incidents moot and academic+
11
Thereafter, on ') September 1881, the -<9 Secretary, &ernando ,+ "ereB, granted the pending motion of
Summer0ille =eneral >erchandising for reconsideration of the -<9 resolution
12
dated 1* September 188', which
dismissed the Complaint of mo0ant Summer0ille =eneral >erchandising in ;+S+ 5o+ 88.3812(6, and accordingly issued
another resolution 0acating the /uestioned 1* September 188' resolution and directing the City "rosecutor of >anila
to continue with the criminal prosecution of the %hos for Dnfair Competition+
!lidad and ?ioleta %ho filed a motion for reconsideration of the resolution dated ') September 1881 before the -<9+
The -<9,
17
thru the new Secretary Simeon .+ -atumanong denied that double @eopardy lies, in a resolution dated ')
9uly 1882, declared that:
.fter an e0aluation of the record, we resol0e to deny the motion for reconsideration+ For double @eopardy to attach,
the following re/uirements must be present: (') upon a 0alid indictmentF (1) before a competent courtF (2) after
arraignmentF (7) when a 0alid plea has been enteredF and (:) when the defendant was con0icted, ac/uitted, or the
case was dismissed or otherwise terminated without the express consent of the accused+ ("eople 0+ Court of .ppeals,
28* SC4. 6*))+ ;n the instant case, it appears that the case was terminated with the express consent of the
respondent, as the criminal case was dismissed upon the express application of the accused+ &er action in ha0ing the
case dismissed constitutes a wai0er of her constitutional prerogati0e against double @eopardy as she thereby
pre0ented the court from proceeding to trial on the merits and rendering a @udgment of con0iction against her+
1:
.t odds with the final -<9 resolution, the 4TC of >anila, ,ranch ', handling Criminal Case 5o+ 883'*216', held in its
<rder dated 1 .pril 1882 that:
Considering the tenors of the orders of dismissal, whate0er maybe the merits of the >otion for 4econsideration,
re0i0al of the case is now barred by the impregnable wall of double @eopardy+
.CC<4-;5=AY, the >otion for 4econsideration dated September '8, 1881 filed by the pri0ate prosecutor and sub@ect
of the >otion to 4esol0e is hereby denied with finality+
The Cler$ of Court is hereby directed to return to the accused the cash bond posted by them for their pro0isional
liberty upon presentation of the re/uired receipts+
16
Thus, Summer0ille =eneral >erchandising raised its case to the Court of .ppeals, doc$eted as C.3=+4+ S" 5o+ ))'*8,
assailing the <rder dated 17 <ctober 188' of the 4TC of >anila, ,ranch ', dismissing Criminal Case 5o+ 883'*216',
as well as the <rders dated 1' .ugust 1881 and 1 .pril 1882 of the same court affirming its pre0ious order of
dismissal+
;n a decision of the Court of .ppeals dated 16 >ay 1887 in C.3=+4+ S" 5o+ ))'*8,
1)
the Court denied due course to
the petition of Summer0ille =eneral >erchandising and affirmed the ruling of the trial court that, indeed, double
@eopardy has set in+
The decision of the Court of .ppeals in C.3=+4+ S" 5o+ ))'*8 is now the sub@ect of a "etition for 4e0iew before this
Court, doc$eted as =+4+ 5o+ '62)7' entitled, Summer0ille =eneral >erchandising and Co+, ;nc+ 0+ !lidad %ho+C
1*
)) ,ear#h -arrant No. 99-1.20 before the RTC of (anila! "ran#h /
Shortly before instituting Criminal Case 5o+ 883'*216' against the %hos, or on ) 9anuary 1888, Summer0ille =eneral
>erchandising applied for the issuance of a search warrant against the Spouses !lidad and ?ioleta %ho and 4oger %ho,
since they persisted in manufacturing and selling Chin Chun Su products despite the ,F.- order directing them to
refrain from doing so+ The application was doc$eted as Search Harrant 5o+ ((3':18 before the 4TC of >anila, ,ranch
), which was presided o0er by respondent herein, 9udge !nrico .+ AanBanas+ . hearing on the application was held on
'8 9anuary 1888
1(
and the search warrant was issued against !lidad, ?ioleta and 4oger %ho on the same day+
28
;ts
enforcement led to the seiBure of se0eral Chin Chun Su products+
2'
MNOPOQRQrOSblOTUV OWOXrYZ M[OQl lOQM\ lOXbrOQrRS
<n ') 9anuary 1888, !lidad, ?ioleta and 4oger %ho filed before the 4TC of >anila, ,ranch ), a motion to /uash the
search warrant and for the return of the items unlawfully seiBed+ The motion was opposed by Summer0ille =eneral
>erchandising+
;n an <rder
21
dated 2 .pril 1888, the 4TC of >anila, ,ranch ), denied !lidad and ?ioleta %hoGs motion to /uash and to
return the seiBed articles for lac$ of merit+
22
!lidad and ?ioleta %ho filed a motion for reconsideration and motion to
transfer the proceedings in 4TC of >anila, ,ranch ), to 4TC of >anila, ,ranch ', citing Supreme Court .dministrati0e
<rder ''23(:
27
designating the 4TC of >anila, ,ranch ', as an ;ntellectual "roperty Court+ The 4TC of >anila, ,ranch
), denied these motions in an <rder dated : 9une 1888,
2:
explaining that:
.nent the >otion to Compel this ,ranch to transfer the case to ,ranch ' of this Court, suffice it to say that the cases
for 0iolation of .rts+ '** and '*( of the 4e0ised "enal Code (now under the ;ntellectual "roperty Aaw) are those that
are already filed in court after the proper preliminary in0estigation and not cases for application for search warrant
in0ol0ing probable 0iolation of said law+ Supreme Court .dministrati0e Circular 5o+ ''23(: itself designates the
alluded court or branch thereof to try and decide which clearly excludes casesapplications for search warrant which
ob0iously does not in0ol0e trying and deciding case for 0iolation of the ;ntellectual "roperty law+
<n respondentGs >otion for 4econsideration, the Court finds their arguments therein a rehash of the issues and
arguments raised in their >otion to #uash+
H&!4!F<4!, for lac$ of merit, respondentsG >otion for 4econsideration and >otion to Transfer, are hereby -!5;!-+
26
!lidad and ?ioleta %ho filed a "etition for Certiorari and "reliminary >andatory ;n@unction,
2)
doc$eted as C.3=+4+ S"
5o+ 688*7, before the Court of .ppeals /uestioning the aforementioned <rders of the 4TC of >anila, ,ranch )+ .
decision dated 6 .ugust 188'
2*
was rendered by the Court of .ppeals denying the petition+ ;t upheld Search Harrant
5o+ ((3':18 as ha0ing been 0alidly issued and properly executed and, thus, there is no basis for the return of the
goods seiBed+ . motion for reconsideration filed by the %hos was denied by the Court of .ppeals in an <rder dated '6
5o0ember 188'+
2(
!lidad and ?ioleta %ho filed a supplement to their >otion for 4econsideration dated 18 5o0ember 188'
78
before the
Court of .ppeals in C.3=+4+ S" 5o+ 688*7, reiterating their prayer for the /uashal of Search Harrant 5o+ ((3':18 and
the return of the seiBed items+ The Court of .ppeals, in a resolution dated 7 -ecember 188',
7'
merely noted the
motion in 0iew of its earlier resolution rendered on '6 5o0ember 188' already denying !lidad and ?ioleta %hoGs
>otion for 4econsideration+
"ained by the decisions and orders of the trial court and appellate court, petitioners !lidad and ?ioleta %ho filed the
present petition praying that the decision of the Court of .ppeals in C.3=+4+ S" 5o+ 688*7 dated 6 .ugust 188' be
re0ersed and set aside, and a new decision be issued granting the /uashal of Search Harrant 5o+ ((3':18 and
ordering the return of the items unlawfully seiBed+
71
;n their >emorandum, petitioners raise the following issues for resolution:
H&!T&!4 <4 5<T T&! C<D4T <F .""!.AS !44!- ;5 -;S4!=.4-;5= T&! H;T&-4.H.A <F T&! ;5F<4>.T;<5 F<4
D5F.;4 C<>"!T;T;<5 .=.;5ST T&! "!T;T;<5!4S ;5 ,4.5C& ' <F 4TC3>.5;A. .S . 4!SDAT <F T&! 4!S<ADT;<5
<F T&! -!".4T>!5T <F 9DST;C! F;5-;5= 5< "4<,.,A! C.DS!+
H&!T&!4 <4 5<T T&! C<D4T <F .""!.AS !44!- ;5 F;5-;5= T&.T 5< =4.?! .,DS! <F -;SC4!T;<5 H.S
C<>>;TT!- ,Y &<5<4.,A! 9D-=! !54;C< A.5].5.S ;5 F;5-;5= T&.T "4<,.,A! C.DS! !J;ST!- .=.;5ST T&!
"!T;T;<5!4S F<4 T&! ;SSD.5C! <F S!.4C& H.44.5T 5<+ ((3':18+
H&!T&!4 <4 5<T T&! C<D4T <F .""!.AS !44!- ;5 F;5-;5= T&.T ,4.5C& ) <F T&! 4!=;<5.A T4;.A C<D4T <F
>.5;A. &.- 9D4;S-;CT;<5 T< ;SSD! S!.4C& H.44.5T 5<+ ((3':18+
H&!T&!4 <4 5<T T&! C<D4T <F .""!.AS !44!- ;5 F;5-;5= T&.T 5< =4.?! .,DS! <F -;SC4!T;<5 H.S
C<>>;TT!- ,Y &<5<4.,A! 9D-=! !54;C< A.5].5.S ;5 4DA;5= T&.T S!.4C& H.44.5T 5<+ ((3':18 H.S
A.HFDAAY !J!CDT!-+
H&!T&!4 <4 5<T T&! C<D4T <F .""!.AS !44!- ;5 F;5-;5= T&.T 5< =4.?! .,DS! <F -;SC4!T;<5 H.S
C<>>;TT!- ,Y &<5<4.,A! 9D-=! !54;C< A.5].5.S ;5 5<T <4-!4;5= T&! 4!TD45 <F T&! ;T!>S S!;]!-
D5-!4 S!.4C& H.44.5T 5<+ ((3':18+
72
The petition is de0oid of merit+
.s to the first issue, it must be noted that the dismissal of Criminal Case 5o+ 883'*216' by the 4TC of >anila, ,ranch
', was initially by 0irtue of the resolution of the -<9 dated 1* September 188'
77
ordering the dismissal of the criminal
case for unfair competition+
This order of dismissal, howe0er, was again set aside by the -<9 in its resolution dated ') September 1881
7:
directing
that appropriate information for Dnfair Competition be filed against the %hos+ The motion for reconsideration of !lidad
and ?ioleta %ho was denied by the -<9 in its resolution dated ') 9uly 1882+
76
This is the latest existing resolution of
the -<9 on the matter, dated ') 9uly 1882, which affirmed the resolution of the then -<9 Secretary &ernando ,+
"ereB directing the City "rosecutor of >anila to file the appropriate information against !lidad and ?ioleta %ho for
Dnfair Competition as defined and penaliBed under Section '6*+2(a), in relation to Sections '6* and ')8 of 4ep+ .ct
5o+ *1(2 or The ;ntellectual "roperty Code of the "hilippines+ Therefore, at the time of the dismissal of Criminal Case
5o+ 883'*216' by the 4TC of >anila, ,ranch ', on 17 <ctober 188', the -<9 resolution on ;+S+ 5o+ 88.3812(6 on
which Criminal Case 5o+ 883'*216' is based has not been written finis as yet+
Ta$ing into consideration these circumstances, the Court of .ppeals did not err in affirming the <rder of the 4TC of
>anila, ,ranch ), denying the motion to /uash filed by the herein petitioners because, subse/uently, the -<9 still
ordered the filing of charges against !lidad and ?ioleta %ho+
.s to whether the 4TC of >anila, ,ranch ', properly dismissed the criminal case against the %hos despite the
resolution of the -<9 ordering their criminal prosecution, we cannot dwell more on the issue because it is already the
sub@ect of =+4+ 5o+ '62)7' before another di0ision of this Court+
;ssues two, three and four, on the other hand, boil down to the central issue of whether or not the Court of .ppeals
erred in upholding the 4TC of >anila, ,ranch ), in its findings of probable cause to issue a search warrant+ .lso
resting on how we shall resol0e the foregoing issue is the fifth and last issue in the "etition at bar which /uestions the
refusal by both the Court of .ppeals and the 4TC of >anila, ,ranch ), to return the seiBed items+
The issuance of Search Harrants is go0erned by 4ule '16 of the 4e0ised 4ules of Court reproduced below:
S!CT;<5 '+ Search warrant defined+ 3 . search warrant is an order in writing issued in the name of the "eople of the
"hilippines, signed by a @udge and directed to a peace officer, commanding him to search for personal property
described therein and bring it before the court+
S!C+ 1+ Court 0here a11li#ation for sear#h 0arrant shall be file2. 3 .n application for search warrant shall be filed with
the following:
a) .ny court within whose territorial @urisdiction a crime was committed+
b) For compelling reasons stated in the application, any court within the @udicial region where the crime was
committed if the place of the commission of the crime is $nown, or any court within the @udicial region where the
warrant shall be enforced+
&owe0er, if the criminal action has already been filed, the application shall only be made in the court where the
criminal action is pending+
S!C+ 2+ "ersonal property to be seiBed+ 3 . search warrant may be issued for the search and seiBure of personal
property:
(a) Sub@ect of the offenseF
(b) Stolen or embeBBled and other proceeds or fruits of the offenseF or
(c) Dsed or intended to be used as the means of committing an offense+
S!C+ 7+ 4e/uisites for issuing search warrant+ 3 . search warrant shall not issue except upon probable cause in
connection with one specific offense to be determined personally by the @udge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched
and the things to be seiBed which may be anywhere in the "hilippines+
S!C+:+ !xamination of complainantF record+ 3 The @udge must, before issuing the warrant, personally examine in the
form of searching /uestions and answers, in writing and under oath, the complainant and the witnesses he may
produce on facts personally $nown to them and attach to the record their sworn statements together with the
affida0its submitted+
S!C+ 6+ ;ssuance and form of search warrant+ 3 ;f the @udge is satisfied of the existence of facts upon which the
application is based or that there is probable cause to belie0e that they exist, he shall issue the warrant, which must
be substantially in the form prescribed by these 4ules+
Hhat constitutes Cprobable causeC is well settled+ ;n >icrosoft Corporation 0+ >axicorp, ;nc+,
7)
we defined probable
cause as follows:
"robable cause means Csuch reasons, supported by facts and circumstances as will warrant a cautious man in the
belief that his action and the means ta$en in prosecuting it are legally @ust and proper+C Thus, probable cause for a
search warrant re/uires such facts and circumstances that would lead a reasonably prudent man to belie0e that an
offense has been committed and the ob@ects sought in connection with that offense are in the place to be searched+
The determination of probable cause does not call for the application of rules and standards of proof that a @udgment
of con0iction re/uires after trial on the merits+ .s implied by the words themsel0es, Cprobable causeC is concerned
with probability, not absolute or e0en moral certainty+ The prosecution need not present at this stage proof beyond
reasonable doubt+ The standards of @udgment are those of a reasonably prudent man, not the exacting calibrations of
a @udge after a full3blown trial+
5o law or rule states that probable cause re/uires a specific $ind of e0idence+ 5o formula or fixed rule for its
determination exists+ "robable cause is determined in the light of conditions obtaining in a gi0en situation+ xxx
;n Columbia "ictures, ;nc+ 0+ Court of .ppeals,
7*
we explained further that:
.lthough the term Cprobable causeC has been said to ha0e a well3defined meaning in the law, the term is exceedingly
difficult to define, in this case, with any degree of precisionF indeed, no definition of it which would @ustify the issuance
of a search warrant can be formulated which would co0er e0ery state of facts which might arise, and no formula or
standard, or hard and fast rule, may be laid down which may be applied to the facts of e0ery situation+ .s to what
acts constitute probable cause seem incapable of definition+ There is, of necessity, no exact test+
.t best, the term Cprobable causeC has been understood to mean a reasonable ground of suspicion, supported by
circumstances sufficiently strong in themsel0es to warrant a cautious man in the belief that the person accused is
guilty of the offense with which he is chargedF or the existence of such facts and circumstances as would excite an
honest belief in a reasonable mind acting on all the facts and circumstances within the $nowledge of the magistrate
that the charge made by the applicant for the warrant is true+
"robable cause does not mean actual and positi0e cause, nor does it import absolute certainty+ The determination of
the existence of probable cause is not concerned with the /uestion of whether the offense charged has been or is
being committed in fact, or whether the accused is guilty or innocent, but only whether the affiant has reasonable
grounds for his belief+ The re/uirement is less than certainty or proof, but more than suspicion or possibility+
;n "hilippine @urisprudence, probable cause has been uniformly defined as such facts and circumstances which would
lead a reasonable, discreet and prudent man to belie0e that an offense has been committed, and that the ob@ects
sought in connection with the offense are in the place sought to be searched+ ;t being the duty of the issuing officer to
issue, or refuse to issue, the warrant as soon as practicable after the application therefor is filed, the facts warranting
the conclusion of probable cause must be assessed at the time of such @udicial determination by necessarily using
legal standards then set forth in law and @urisprudence, and not those that ha0e yet to be crafted thereafter+
He also declared in "eople 0+ Chiu,
7(
citing (alaloan v. Court of %11eals!
:8
that a search warrant is merely a @udicial
process designed by the 4ules to respond only to an incident in the main case, if one has already been instituted, or in
anticipation thereof+
;t bears repeating that the proceedings before the 4TC of >anila, ,ranch ), was solely for the issuance of Search
Harrant 5o+ ((3':18, while the main case against !lidad and ?ioleta %ho for 0iolation of The ;ntellectual "roperty
Code was instituted only later on as Criminal Case 5o+ 883'*216' before the 4TC of >anila, ,ranch '+ Hhat is before
us in the "etition at bar is the 0alidity of the search warrant issued in the proceedings in Search Harrant 5o+ ((3':18+
. perspicacious examination of the records re0eal that the 4TC of >anila, ,ranch ), followed the prescribed procedure
for the issuance of Search Harrant 5o+ ((3':18, namely, (') the examination under oath or affirmation of the
Complainant and his witnesses and, in this case, 9udge !nrico .+ AanBanas personally examined complainant3
policewoman S"<7 5edita .l0ario ,alagbis, and >r+ ?ictor Chua, the representati0eofficer of Summer0ille =eneral
>erchandising, at the hearing on the application for Search Harrant 5o+ ((3':18 held on '8 9anuary 1888F (1) an
examination personally conducted by then "residing 9udge AanBanas, in the form of searching /uestions and answers,
in writing and under oath, of the complainant and witnesses on facts personally $nown to themF and (2) the ta$ing of
sworn statements, together with the affida0its submitted, which were duly attached to the records+
:'
;n determining probable cause in the issuance of a search warrant, the oath re/uired must refer to the truth of the
facts within the personal $nowledge of the applicant or his witnesses, because the purpose thereof is to con0ince the
committing magistrate, not the indi0idual ma$ing the affida0it and see$ing the issuance of the warrant, of the
existence of probable cause+
:1
From the affida0it dated ) 9anuary 1888 of S"<7 5edita ,alagbis, in support of the application for search warrant, she
stated that Summer0ille =eneral >erchandising represented by >r+ ?ictor Chua sought the assistance of their police
station in connection with the proliferation of fa$e Chin Chun Su products+ Hith ?ictor Chua, they made a sur0eillance
of two places, namely 178) Topacio Street and 17'1 4aymundo Street both in San .ndres, >anila+ Through this, they
were able to 0erify that plastic containers were being labeled with Chin Chun Su stic$ers filled with cream at 178)
Topacio Street+ <n the other hand, in the affida0it dated ) 9anuary 1888 of ?ictor Chua, he stated that Summer0ille
=eneral >erchandising, being the exclusi0e importer, distributor and dealer of Chin Chun Su products recei0ed reliable
information that persons going by the name of !lidad, ?ioleta and 4oger %ho were engaged in the illegal manufacture
and sale of these products+ From the sur0eillance conducted with the help of S"<7 ,alagbis, they saw a tricycle full of
containers ta$en to a house at 17'1 4aymundo Street, San .ndres, >anila+ ;t was at this address that Chin Chun Su
stic$ers were being affixed+ The containers were thereafter ta$en to 178) Topacio Street to be filled with the cream
product+
Clearly, probable cause existed for the issuance of the warrant as shown by the affida0its of the abo0e affiants who
had personal $nowledge of facts indicating that an offense in0ol0ing 0iolation of intellectual property rights was being
committed and that the ob@ects sought in connection with the offense are in the place sought to be searched+ The
sur0eillance conducted by S"<7 5edita ,alagbis on the basis of reliable information that !lidad, ?ioleta and 4oger %ho
were engaged in the illegal manufacture and sale of fa$e Chin Chun Su products enabled her to gain personal
$nowledge of the illegal acti0ities of the %hos+
:2
This fact was sufficient @ustification for the examining @udge, in this
case 9udge AanBanas, to conclude that there was probable cause for the issuance of the search warrant+
.t the hearing conducted by 9udge AanBanas, S"<7 5edita ,alagbis and ?ictor Chua testified on the affida0its they
separately executed, and essentially stated therein upon in/uiry by 9udge AanBanas that indeed se0eral fa$e Chin
Chun Su products were loaded to a tricycle and brought to a warehouse in Topacio Street+
;n "eople 0+ Tee,
:7
this Court held that:
;t is presumed that a @udicial function has been regularly performed, absent a showing to the contrary+ . magistrateGs
determination of probable cause for the issuance of a search warrant is paid great deference by a re0iewing court, as
long as there was substantial basis for that determination+ Substantial basis means that the /uestions of the
examining @udge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to
belie0e that an offense has been committed, and the ob@ects in connection with the offense sought to be seiBed are in
the place sought to be searched+
He cannot find any irregularity or abuse of discretion on the part of 9udge AanBanas for issuing the assailed search
warrant+ <n the contrary, we find that he had complied with the procedural and substanti0e re/uirements for issuing a
search warrant+ He are, therefore, bound to respect his finding of probable cause for issuing Search Harrant 5o+ ((3
':18+
.fter declaring that Search Harrant 5o+ ((3':18 was 0alidly issued by the 4TC of >anila, ,ranch ), then there is no
reason for us to order the return of the articles seiBed by 0irtue thereof+
H&!4!F<4!, the -ecision of the Court of .ppeals dated 6 .ugust 188' and 4esolution dated '6 5o0ember 188',
denying the /uashal of Search Harrant 5o+ ((3':18 and the return of the seiBed items, are hereby .FF;4>!-+ Costs
against petitioners+
[G.R. N,. 112182. N,3&45&% 12, 2002.]
$EDRO !6$!6$IN, Petitioner, 3. $EO$LE O7 HE $HILI$$INE#, Respondent.
This is a petition for re0iew on #ertiorari, see$ing to set aside the 5o0ember 1), '(() decision of the Court of
.ppeals, ' in C.3=+4+ C4 5o+ ')227, which affirmed with modification the 5o0ember '*, '((7 decision 1 of the
4egional Trial Court of >alabon, ,ranch ')8, wherein petitioner "edro Cupcupin was found guilty of the crimes of
0iolation of Section '6, .rticle ;;;, 4epublic .ct 671:, otherwise $nown as the -angerous -rugs .ct of '()1, as
amended, and of 0iolation of Section ', "residential -ecree '*66, otherwise $nown as the Dnlawful "ossession of
Firearms and .mmunition, in Criminal Case 5o+ '22)73>5 and Criminal Case 5o+ '22):3>5 :)*7, respecti0ely+
The ;nformations filed against petitioner read:chanrob'es 0irtual 'awlibrary
;n Criminal Case 5o+ '22)73>5 for 0iolation of Section '6, .rticle ;;;, 4epublic .ct 671:, otherwise $nown as the
-angerous -rugs .ct of '()1, as amended:chanrob'es 0irtua' 'aw 'ibrary
That on 8: >arch '((2 in >alabon and within the @urisdiction of this &onorable Court, the abo0e3named accused did
then and there wilfully, unlawfully and feloniously possess approximately 2*+18*: grams of methamphetamine
hydrochloride, popularly $nown as CshabuC, a regulated drug, without the corresponding license or prescription
therefor+
C<5T4.4Y T< A.H+ 2
;n Criminal Case 5o+ '22):3>5 for 0iolation of Section ', "residential -ecree '*66, otherwise $nown as the Dnlawful
"ossession of Firearms and .mmunition:chanrob'es 0irtual 'awlibrary
That on 8: >arch '((2 in >alabon and within the @urisdiction of this &onorable Court, the abo0e3named accused did
then and there wilfully, unlawfully and feloniously ha0e custody, control and possession of:chanrob'es 0irtual 'aw library
one (') >'6 ,aby .rmalite rifle with defaced serial no+ and fully loaded magaBine
one (') ,rowning pistol without serial no+ with fully loaded magaBine
two (1) empty magaBine for .rmalite without lawful authority therefore+
C<5T4.4Y T< A.H+ 7
Dpon arraignment on .ugust :, '((2, petitioner pleaded not guilty+ Trial on the merits thereafter ensued+ :
The 0ersion of the prosecution can be synthesiBed as follows: ,ased on a confidential information that petitioner,
"edro Cupcupin is engaged in selling methamphetamine hydrochloride (shabu), and in possession of firearms and
ammunitions without the necessary license, 5,; .gent Timoteo 4e@ano of the 5ational Capital 4egion, conducted a
sur0eillance on the 0icinity of petitioner^s residence at ;nt+ -a0id Santos, C+ .rellano Streets, >alabon, >etro >anila+
.fter confirming said confidential information, .gent 4e@ano applied for the issuance of search warrants before 9udge
4omeo 9+ Calle@o, 6 of the 4egional Trial Court of >anila, ,ranch 7(+ )
<n >arch 2, '((2, 9udge 4omeo 9+ Calle@o issued the following search warrants:chanrob'es 0irtual 'awlibrary
"!<"A! <F T&! "&;A;"";5!S, "laintiff, S!.4C& H.44.5T 5<+ :63(2
3 0ersus 3 F<4: ?;<A.T;<5 <F S!CT;<5 '6
"!-4< CD"CD";5 .4T;CA! ;;;, of 4!"D,A;C
;nt+ -a0id Santos, C+ .rellano .CT 671:, .S .>!5-!-
Street, >alabon, >etro
>anila
.ccused+
x 3333333333333333333333333333333333333 x
S!.4C& H.44.5T
T< .5Y "!.C! <FF;C!4:chanrob'es 0irtual 'aw library
Dpon sufficient showing of the existence of probable cause, after determination personally by the 9udge on
examination under oath of the applicant and his witness by means of searching /uestions and answers thereto, based
on the facts personally $nown to them that 4espondent "edro Cupcupin residing at said address, had been and still is
using the said premises, for the possession andor use of regulated substance $nown as methamphetamine
hydrochloride (S&.,D) in 0iolation of section '6 of 4epublic .ct 671:, as amended+
H&!4!F<4!, the Court commands you to conduct an immediate search, at any time of the day or night, including
Saturdays and Sundays, on the premises at the abo0e address, including the rooms located therein, and seiBe the
following:@gc:chanrobles+com+ph
CD5-!T!4>;5!- #D.5T;TY <F >!T.>"&!T.>;5! &Y-4<C&A<4;-! (S&.,D)C and to bring the same before the
Court for proper disposition in accordance with law+ You shall ma$e a return of the warrant to the Court within ten
('8) days from today+ S< <4-!4!-+ *
"!<"A! <F T&! "&;A;"";5!S
"laintiff, S!.4C& H.44.5T 5<+ :)3(2
3 0ersus 3
F<4: ?;<A.T;<5 <F
"!-4< CD"CD";5 "4!S;-!5T;.A -!C4!! '*66
;nt+ -a0id Santos, C+ .rellano (S!CT;<5 ')
Street, >alabon, >etro
>anila
.ccused+
x 3333333333333333333333333333333333333 x
S!.4C& H.44.5T
T< .5Y "!.C! <FF;C!4:chanrob'es 0irtual 'aw library
Dpon sufficient showing of the existence of probable cause, after determination personally by the 9udge on
examination under oath of the applicant and his witness by means of searching /uestions, and answers thereto, based
on the facts personally $nown to them, that .ccused "edro Cupcupin residing at said address, had been and still in
possession of assorted firearms herein below listed, without the re/uisite license therefore, in 0iolation of "residential
-ecree 5o+ '*66+
H&!4!F<4!, the Court commands you to conduct an immediate search, at any time of the day and night, including
Saturdays, on the premises at the abo0e address including the rooms located therein and seiBe the following:chanrob'es 0irtual 'awlibrary
a) Two (1) +7: cal+ pistolsF
b) <ne (') +2* cal+ re0ol0erF
c) <ne (') +( mm+ pistolF
d) Two (1) >3'6 armalite riflesF and
e) <ne (') +11 cal+ pistol
and bring the same before the Court for proper disposition in accordance with law+
You shall ma$e a return of the warrant to the Court within ten ('8) days from today+ S< <4-!4!-+
<n >arch :, '((2, at about ) a+m+, the team composed of Super0ising .gent !duard ?illarta, 5,; agents Timoteo
4e@ano, 4uel Aasala, 5arciso "e_a, 9r+, 9oel Consador, Ceres -elapa3Cabrera, !rnesto Cabrera and Special
;n0estigators .rthur <li0eros and .riel 5u_eB and S"<' <laBo, raided the house of petitioner located at ;nt+ -a0id
Santos and C+ .rellano Streets, >alabon, >etro >anila, '8 which consisted of a 13storey house made up of strong
materials and a wor$shop room at the ground floor made up of light materials+ ''
The 5,; agents presented the search warrants and introduced themsel0es to the petitioner and his wife, .delfa
Cupcupin+ Dpon their re/uest, the 5,; agents waited for petitioner^s mother, ;luminada Cupcupin and in their
presence, the team searched the bedroom at the second floor and found a fully3loaded >'6 armalite rifle underneath
the bed+ They li$ewise found a semi3automatic browning pistol and two empty magaBines of armalite inside a drawer
of a table found in the same bedroom+ .gents 4e@ano and Consador inscribed their respecti0e initials and date on the
handle of the rifle and the pistol+ '1 .n ;n0entory of the items seiBed was thereafter signed by .delfa Cupcupin,
!lumina Cupcupin, and the petitioner+ '2
Thereafter, the team searched the wor$shop room, again in the presence of petitioner, his wife, and his mother+ '7
SeiBed from petitioner^s wor$shop room were the following: C') nine (() plastic pac$s of white crystalline substance
found inside a box KofL `!T!45;TY^F 1) one impro0ised water pipeF 2) one (') impro0ised burnerF 7) one (') weighing
scale mar$ed aT.?;T.^F :) three (2) small tootersF 6) one pac$ of plastic pouchesF )) one electric resealerF *)
aluminum foilsF () fi0e (:) assorted magaBines for pistolsF '8) one (') rifle grenadeF '') assorted bullets for >'6, +7:
cal and ( mm+C ': .n in0entory of the items seiBed was prepared and thereafter signed and ac$nowledged by .delfa
Cupcupin, !lumina Cupcupin, and the petitioner+ '6
Dpon examination by 5,; Forensic Chemist .ida 4+ ?iloria3>agsipoc, the nine plastic pac$s of white crystalline
substance seiBed from the wor$shop room of petitioner, turned out to be 2*+818' grams of >ethamphetamine
&ydrochloride, popularly $nown as shabu+ ')
"etitioner, on the other hand, raised the defense of frame3up+ &e alleged that between 6:88 to ):88 in the morning of
>arch :, '((2, while he was resting at the ground floor of his house in the company of his wife, .delfa Cupcupin and
their two children, the team of 5,; agents arri0ed+ They searched his house and detained him and his family at the
ground floor+ &e denied ownership and possession of the illegal items allegedly seiBed from his house but admitted
ownership of the automatic browning pistol found in his bedroom+ &e produced a Certification from the "5" Firearms
and !xplosi0e -i0ision showing that said browning, cal+ (mm pistol with Serial 5o+ 17:"]*76') is registered in his
name+ '* .fter the search and while in handcuffs, he was forced to sign some documents which turned out to be an
in0entory receipt and a search warrant+ '(
"etitioner further declared that the charges against him are purely harassment because in '((' he had been
pre0iously charged, but was subse/uently ac/uitted of illegal possession of regulated drugs and firearms in Criminal
Case 5os+ '8'8*3>5 and '8'8(3>5, respecti0ely, before ,ranch )1, of the 4egional Trial Court of >alabon+ 18
<n 5o0ember '*, '((7, a decision was rendered by the trial court con0icting petitioner, to wit:chanrob'es 0irtual 'aw library
H&!4!F<4!, in 0iew of all the foregoing, @udgment is hereby rendered as follows:chanrob'es 0irtual 'aw library
'+ ;n Criminal Case 5o+ '22)7, finding accused "edro Cucupin guilty beyond reasonable doubt of ?iolation of Section
'6, .rticle ;;;, 4epublic .ct 671:, as further amended by 4epublic .ct )6:( and considering the /uantity of the
>ethamphetamine &ydrochloride in0ol0ed in this case, hereby sentences him to suffer an indeterminate penalty of
<ne (') Year, !ight (*) >onths and Twenty (18) -ays as minimum, to Four (7) Years, Two (1) >onths and <ne (')
-ay as maximum, E to pay the costF
1+ ;n Criminal Case 5o+ '22):, finding accused "edro Cupcupin guilty beyond reasonable doubt of ?iolation of
"residential -ecree 5o+ '*66, hereby sentences him to suffer an indeterminate penalty of Se0enteen (')) Years, Four
(7) >onths and <ne (') -ay as minimum, to !ighteen ('*) Years, !ight (*) >onths and <ne (') -ay as maximum,
and to pay the cost of this suit+
The unlicensed >'6 baby armalite, magaBines, assorted ammunitions, methamphetamine hydrochloride and the
paraphernalia presented as e0idence are all forfeited in fa0or of the go0ernment, and the ,ranch Cler$ of Court is
directed to turn o0er the same to the "5" Firearms and !xplosi0e <ffice and -angerous -rugs ,oard for proper
disposition+
The (mm automatic pistol is hereby ordered returned to accused "edro Cupcupin+ S< <4-!4!-+ 1'
<n appeal, the @udgment of con0iction was affirmed, but modified as to the penalties, to wit:chanrob'es 0irtual 'awlibrary
H&!4!F<4!, the decision sub@ect of this appeal is .FF;4>!- with modifications as to the penalties imposed:chanrob'es 0irtual 'awlibrary
(') ;n Criminal Case 5o+ '22)73>5 for 0iolation of 4+.+ 5o+ 671:, %##use23appellant is sentenced to suffer the
indeterminate penalty of imprisonment of Six (6) >onths of arresto mayor, as minimum, to Four (7) Years and Two
(1) >onths of prision correccional, as minimum+
(1) ;n Criminal Case 5o+ '22):3>5 for 0iolation of "+-+ 5o+ '*66, %##use23appellant shall suffer an indeterminate
penalty of imprisonment of Six (6) Years of prision correccional, as minimum, to !ight (*) Years of prision mayor, as
maximum, and to pay a fine of thirty thousand pesos ("28,888+88)+ S< <4-!4!-+ 11
&ence, the instant petition raising the following errors:chanrob'es 0irtual 'awlibrary
;
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.5- C<5ST;TDT;<5.AAY ;5F;4>, ;5?.A;- .5- ?<;-, T&!Y 5<T &.?;5= C<>"A;!- H;T& T&! ;5-;S"!5S.,A!
4!#D;4!>!5TS F<4 T&! ;SSD.5C! T&!4!<F+
;;
T&! &<5+ C<D4T <F .""!.AS =4.?!AY !44!- ;5 =;?;5= FDAA F.;T& .5- C4!-!5C! T< T&! H;T5!SS!S <F T&!
"4<S!CDT;<5 -!S";T! T&! F.CT T&.T T&! H;T5!SS!S, H&< H!4! 5,; .=!5TS, H!4! .CTD.T!- H;T& >.A;C!,
;>"4<"!4 ><T;?! .5- C<>>;TT!- ;44!=DA.4 .CTS ;5 S!CD4;5= .5- ;>"A!>!5T;5= T&! .F<4!>!5T;<5!-
S!.4C& H.44.5TS+
;;;
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9<;5T -!C;S;<5 <F T&! T4;.A C<D4T .C#D;TT;5= T&! .CCDS!- F<4 T&! <FF!5S!S <F ?;<A.T;<5 <F S!C+ ':
<F T&! -.5=!4<DS -4D=S .CT .5- ?;<A.T;<5 <F "+-+ '*66, H&;C& .4! T&! S.>! <FF!5S!S 5<H SD,9!CT <F
T&! ;5ST.5T C.S!S .5- H&!4!;5 T&! "!T;T;<5!4 &.- ,!!5 C<5?;CT!- ,Y T&! T4;.A C<D4T .5- .FF;4>!-
,Y T&! &<5+ C<D4T <F .""!.AS+
;?
T&! &<5+ C<D4T <F .""!.AS S!4;<DSAY !44!- ;5 5<T .C#D;TT;5= T&! .CCDS!-3"!T;T;<5!4 <F T&!
<FF!5S!S C&.4=!-, T&! S.>! 5<T &.?;5= ,!!5 "4<?!- ,!Y<5- 4!.S<5.,A! -<D,T+ 12
"etitioner contends that the items allegedly seiBed from his residence are inadmissible as e0idence because the search
warrants issued against him failed to comply with the constitutional and statutory re/uirements for the issuance of a
0alid search warrant+ Specifically, petitioner claims that said warrants were defecti0e on the grounds that: (') 5,;
.gent Timoteo 4e@ano who applied for the issuance thereof had no personal $nowledge of the facts on which the
warrants were basedF and (1) sub@ect warrants failed to particularly describe the place to be searched because there
are two houses located in the address stated in the said warrants+
The contentions are without merit+
Sections 1 and 2 (1), .rticle ;;;, of the Constitution state:chanrob'es 0irtual 'awlibrary
S!C+ 1+ The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seiBures of whate0er nature and for any purpose shall be in0iolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the @udge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seiBed+
S!C+ 2+ + + +
(1) .ny e0idence obtained in 0iolation of this or the preceding section shall be inadmissible for any purpose in any
proceeding+
Dnder Sections 7 and :, 4ule '16, of the 4e0ised 4ules on Criminal "rocedure, the re/uisites for the issuance of a
0alid search warrant are as follows:chanrob'es 0irtual 'aw library
S!C+ 7+ 4e/uisites for issuing search warrant+ b . search warrant shall not issue except upon probable cause in
connection with one specific offense to be determined personally by the @udge after examination under oath or
affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched
and the things to be seiBed which may be anywhere in the "hilippines+ (2a)
S!C+ :+ !xamination of complainant, record+ b The @udge must, before issuing the warrant, personally examine in the
form of searching /uestions and answers, in writing and under oath, the complainant and the witnesses he may
produce on facts personally $nown to them and attach to the record their sworn statements, together with the
affida0its submitted+ (7a)
;n determining probable cause in the issuance of a search warrant, the oath re/uired must refer to the truth of the
facts within the personal $nowledge of the applicant or his witnesses, because the purpose thereof is to con0ince the
committing magistrate, not the indi0idual, ma$ing the affida0it and see$ing the issuance of the warrant, of the
existence of probable cause+ Search warrants are not issued on loose, 0ague or doubtful basis of fact, nor on mere
suspicion or belief+ 17
;n the case at bar, 5,; .gent Timoteo 4e@ano who applied for the issuance of Search Harrant 5os+ :63(2 and :)3(2,
had personal $nowledge of the circumstances on which the warrants were based+ .dmittedly, 4e@ano^s $nowledge of
petitioner^s illegal possession of firearms and prohibited drugs came from a confidential informant, and therefore,
initially hearsay+ 5e0ertheless, the sur0eillance and in0estigation he conducted on the basis of said confidential
information enabled him to gain personal $nowledge of the illegal acti0ities of petitioner+ 1: &ence, his testimony was
sufficient @ustification for the examining @udge to conclude that there was probable cause for the issuance of a search
warrant+
Contrary to the claim of petitioner, the records show that there is only one house located in the address to be
searched+ The residence of petitioner consisted of a structure with two floors, made up of strong materials and a
wor$shop room at the ground floor made up of light materials+ The unrebutted testimony of the prosecution witnesses
re0eal that inside the main house is an alley connected to the door of the wor$shop room+ "ertinent portion of the
testimony of 5,; .gent Consador, one of the members of the raiding team, reads:chanrob'es 0irtual 'awlibrary
Court (witness)
# Hhere is the house of the accused locatedI
. ;t is located at the corner of .rellano St+, Your &onor+
# >alabonI
. Yes, Your &onor+
# ;s there a number in the house of the accusedI
. ; cannot recall, Your &onor+
# &ow many structures are there in the premises of "edro CupcupinI
. .s ; remember, there are two structures but it loo$s li$e they are ad@acent, one big and the other one li$e nipa hut
but they are ad@acent, Your &onor+
# Hhat do you mean ad@acentI
. The small structure is connected to the big structure, Your &onor+
# Hhen you say connected, will you tell the court what do you mean+
. Hhen you enter the structure, there is a door that can be opened at the small structure, Your &onor+
# Hithout going outside of the houseI
. Yes, Your &onor+
# -o we understand from you that there is a connecting alley inside the bigger structure going to the small structureI
. Yes, Your &onor+
# These two structures belong to "edro CupcupinI
. Yes, Your &onor+
Ai$ewise rele0ant is the testimony of .gent 4e@ano, thus:chanrob'es 0irtual 'awlibrary
. He go bac$ now to the two buildings which you said in your own opinion is only one+ ; am showing to you the
picture which was ta$en by your photographer, is this the scenario of the place where KtheL two buildings depicted in
the picture mar$ed as !xhibit C5C I . two storKeLy house is depicted at the left hand portion of !xhibit C>C that would
be the house you are alluding to as the house which you first entered the second floor despite the fact that you will
pass the ground floor that is the building you are alluding in that statement of yours or testimony of yours a while
agoI
. Yes, sir+
# &ow about a structure depicted at the right hand portion in between the two 0ehicles, is it part also of the residence
of CupcupinI
. ;t is part of the residence and while inside the edifice there is no di0ider, sir+
# You will agree with me >r+ witness that despite the fact that there is no di0ision, two 0ehicles were par$ed in
between the two structures, one @eep and a passenger @eep+ >y /uestion is, you will agree with me that despite the
fact KthatL there was no di0ision, two structures were clearly depicted in !xhibit C5C I
. .s ; ha0e said in my obser0ation, there is only one structure because in between seemingly two structures, there is
a corridor connecting the two structures+ Hhile inside the said edifice, there is only one structure, sir+
;t is clear from the foregoing that the wor$shop room where the pac$s of shabu were found is actually an integral part
of petitioner^s residence+ &ence, it cannot be argued that there are two houses in the address stated in the warrants
and that the same failed to particularly describe the place to be searched+ The rule is that a description of the place to
be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place
intended to be searched+ Tested against the foregoing rule, the Court finds that the residence of petitioner stated in
the warrants as C;nt+ -a0id Santos, C+ .rellano Street, >alabon, >etro >anila,C can with reasonable effort be
ascertained and identified by the 5,; agents who were ordered to search the+C + + abo0e address, including the rooms
located therein+C 1*
;t must be stressed that petitioner does not deny ownership, access to and more importantly, immediate physical
occupancy and control o0er said wor$shop room and his entire residence+ .s a matter of law, when prohibited and
regulated drugs are found in a house or other building belonging to and occupied by a particular person, the
presumption arises that such person is in possession of such drugs in 0iolation of law, and the fact of finding the same
is sufficient to con0ict+ <therwise stated, the finding of the drugs in the building owned by petitioner raised the
presumption of $nowledge and, standing alone, was sufficient to con0ict+ 1(
;t may be argued that in the cases of illegal possession of regulated drugs and firearms filed against petitioner in
'((', in Criminal Case 5os+ '8'8*3>5 and '8'8(3>5, respecti0ely, before ,ranch )1, of the 4egional Trial Court of
>alabon, the trial court found that the Cnipa hutC near the house of petitioner is owned by a certain ,en@amin Santos+
28 ,ut since it was not shown that said Cnipa hutC is the same wor$shop room referred to in the present case, and
that the factual circumstances on which the finding that sub@ect Cnipa hutC is not owned by petitioner, still holds true
in the instant case, the Court cannot rule that there are indeed two houses in the address stated in the search
warrants issued against petitioner+ .t any rate, it is not the ownership of the place where the illegal items were seiBed
that matters+ Hhat is decisi0e is that, it is the petitioner who had access to and control o0er said wor$shop room
being an integral part of his house+
;n criminal cases in0ol0ing prohibited drugs, there can be no con0iction unless the prosecution shows that the accused
$nowingly possessed the prohibited articles in his person, or that animus possidendi is shown to be present together
with his possession or control of such article+ 2' .nimus possidendi is only prima facie+ ;t is sub@ect to contrary proof
and may be rebutted by e0idence that the accused did not in fact exercise power and control o0er the thing in
/uestion, and did not intend to do so+ The burden of e0idence is thus shifted to the possessor to explain absence of
animus possidendi+ 21
;n the instant case, petitioner failed to present any e0idence to rebut the existence of animus possidendi o0er the
armalite rifle and the pac$s of shabu found in his residence+ The mere uncorroborated statement that he was not
aware of the existence of said illegal items in his house is insufficient+ 22 >oreo0er, the defense of Cframe3upC raised
by petitioner is a common and standard line of defense which is in0ariably, 0iewed by this Court with disfa0or, it being
capable of easy concoction and difficult to pro0e+ Considering that no clear and con0incing e0idence was presented to
pro0e that he was really framed up, the presumption of regularity in the performance of official duty, as well as the
principle that findings of the trial court on the credibility of witnesses are entitled to great respect, must pre0ail o0er
the petitioner^s imputation of ill3moti0e and harassment on the part of the 5,; .gents who conducted the search+ 27
For the crime of illegal possession of regulated drugs, the Court of .ppeals correctly deleted the excess of ' day in the
maximum penalty imposed by the trial court, i+e+, four (7) years, two (1) months, and one (') day of prision
correctional+ ;n "eople 0+ >edenilla, 2: the Court held that if the regulated drug weighs less than 66+6) grams, then
the penalty is prision correctional, if 66+6) grams or more but less than '22+22 grams, then the penalty is prision
mayor, and if '22+22 grams or more, but less than 188 grams, then the penalty is reclusion temporal+ Considering
that, 2*+818' grams of >ethamphetamine &ydrochloride, or shabu is in0ol0ed in the case at bar, the proper penalty is
prision correctional+ There being no attendant modifying circumstance the maximum period of the imposable penalty,
cannot exceed two (1) years, four (7) months and one (') day to four (7) years and two (1) months, the medium
period of prision correctional+ .pplying the ;ndeterminate Sentence Aaw, the minimum period of the imposable penalty
shall be within the range of arresto mayor (' month and ' day to 6 months), the penalty next lower in degree to
prision correctional+
4epublic .ct 5o+ ('6:, otherwise $nown as the Comprehensi0e -angerous -rugs .ct 1881, increased the penalty for
illegal possession of '8 grams or more but less than :8 grams of methamphetamine hydrochloride or CshabuC to life
imprisonment and a fine ranging from four hundred thousand pesos ("788,888+88) to fi0e hundred thousand pesos
(":88,888+88)+ &owe0er, said law not being fa0orable to the accused, cannot be gi0en retroacti0e application in the
instant case+
Dnder 4epublic .ct *1(7, amending "+-+ 5o+ '*66, the penalty for illegal possession of firearms classified as high
powered, li$e an >'6 armalite rifle, 26 is prision mayor minimum and a fine of "28,888+88+ 5o modifying
circumstance ha0ing been pro0en, the penalty shall be imposed in its medium period+ 2) .pplying the ;ndeterminate
Sentence Aaw, the maximum period of the imposable penalty cannot exceed the medium period of prision mayor
minimum, i+e+, six (6) years, eight (*) months and one (') day to se0en ()) years and four (7) months+ The Court of
.ppeals therefore erred in fixing the maximum period of the imposable penalty to eight (*) years of prision mayor+
The minimum period shall be within the range of prision correccional in its maximum period (7 years, 1 months and '
day to 6 years), the penalty next lower in degree to prision mayor minimum+
H&!4!F<4!, in 0iew of all the foregoing, the 5o0ember 1), '(() decision of the Court of .ppeals in C.3=+4+ C4 5o+
')227, finding petitioner "edro Cupcupin guilty beyond reasonable doubt of the crimes of illegal possession of
regulated drugs and illegal possession of firearm is .FF;4>!- with ><-;F;C.T;<5S+ .s modified, petitioner is
sentenced to suffer: (') the indeterminate penalty of imprisonment ranging from six (6) months of arresto mayor, as
minimum, to four (7) years and two (1) months, of prision correccional, as maximum in Criminal Case 5o+ '22)73>5,
for illegal possession of regulated drugs under Section '6, of 4+.+ 5o+ 671:, as amended by 4+.+ 5o+ )6:(F and (1)
the indeterminate penalty of imprisonment ranging from six (6) years of prision correccional, as minimum, to se0en
()) years and four (7) months of prision mayor, as maximum, and to pay a fine of "28,888+88 for illegal possession of
firearm under Section ', of "+-+ 5o+ '*66, as amended by 4+.+ 5o+ *1(7, in Criminal Case 5o+ '22):3>5+
[G.R. NO. 112101 : #&8.&45&% 22, 2004]
$EO$LE O7 HE $HILI$$INE#, %11ellee, v. H6ANG "HEN H6A and *OG9 LEE, %11ellants+
This is an appeal from the -ecision
'
of the 4egional Trial Court (4TC) of "araRQa/ue City, >etro >anila, ,ranch 1:(,
con0icting the appellants of 0iolation of Section '6, .rticle ;;; of 4epublic .ct 5o+ 671:, as amended+
/& !a'& -,% ./& $%,'&:+.(,n
"olice operati0es of the "ublic .ssistance and 4eaction .gainst Crime (".4.C) under the -epartment of ;nterior and
Aocal =o0ernment recei0ed word from their confidential informant that "eter Chan and &enry Aao,
1
and appellants
9ogy Aee and &uang ]hen &ua were engaged in illegal drug traffic$ing+ The policemen also learned that appellant Aee
was handling the payments and accounting of the proceeds of the illegal drug traffic$ing acti0ities of Aao and
Chan+
2
"<2 ,elliardo .nciro, 9r+ and other police operati0es conducted sur0eillance operations and were able to 0erify
that Aao and appellant Aee were li0ing together as husband and wife+ They once spotted Chan, Aao, the appellants and
two others, in a seafood restaurant in ,ocobo Street, !rmita, >anila, late in the e0ening+ <n another occasion, the
policemen saw Chan, Aao, and the appellants, at the Celicious 4estaurant along 4+ SancheB Street, !rmita, >anila, at
about *:28 p+m+ They were spotted the third time at the >idtown &otel at about ):88 p+m+ to *:88 p+m+
7
The police
operati0es also 0erified that Chan and Aao resided at 4oom 5os+ '17: and '17), Cityland Condominium, -e la 4osa
Street, >a$ati City, and in a two3storey condominium unit at 5o+ '( .tlantic -ri0e, "acific =rand ?illa, Sto+ 5iRQo,
"araRQa/ue, >etro >anila+
:
<n <ctober 1:, '((6, S"<1 Cesar 5+ Teneros of the ".4.C secured Search Harrant 5o+ (63*8' for 0iolation of
"residential -ecree ("+-+) 5o+ '*66 (illegal possession of firearms and explosi0es) and Search Harrant 5o+ (63*81,
for 0iolation of Sections '1, '7 and '6 of 4ep+ .ct 5o+ 671:, as amended, from 9udge Hilliam >+ ,ayhon, !xecuti0e
9udge of the 4TC of >anila+
6
Senior "olice ;nspector Aucio >argallo super0ised the enforcement of Search Harrant 5o+
(63*8' at the Cityland Condominium at about '':88 p+m+ on <ctober 1(, '((6+ Hith him were "<2 .nciro, 9r+, "<2
Hilhelm Castillo, S"<2 4oger Ferias and se0en other policemen of the ".4.C, who were all in uniform, as well as a
Cantonese interpreter by the name of Chuang+ Hhile no persons were found inside, the policemen found two $ilos of
methamphetamine hydrochloride, popularly $nown as shabu, paraphernalia for its production, and machines and tools
apparently used for the production of fa$e credit cards+
)
Thereafter, the police operati0es recei0ed information that Aao and Chan would be deli0ering shabu at the Furama
Aaser %arao$e 4estaurant at the corner of -asmariRQas and >ancha Streets, >anila+ The policemen rushed to the
area on board their 0ehicles+ ;t was 1:88 a+m+ of <ctober 16, '((6+ The policemen saw Chan and Aao on board the
latterGs &onda Ci0ic car+ .s the two men alighted, one of the men approached them and introduced himself, but Chan
and Aao fired shots+ Thus, a shoot3out ensued between the members of the raiding team and the two suspects+ Chan
and Aao were shot to death during the encounter+ The policemen found two plastic bags, each containing one $ilo of
shabu, in AaoGs car+
The policemen then proceeded to 5o+ '( .tlantic -ri0e, "acific =rand ?illa, to enforce Search Harrant 5o+ (63*81+
Hhen the policemen arri0ed at the place, they coordinated with .ntonio "angan, the officer in charge of security in
the building+
*
The men found that the Condominium Dnit 5o+ '( was leased to Aao under the name &enry %ao Tsung+
The policemen, "angan and two security guards of the "acific =rand ?illa proceeded to the condominium unit+ .nciro,
9r+ $noc$ed repeatedly on the front door, but no one responded+ "angan, li$ewise, $noc$ed on the door+
(
.ppellant
Aee peeped through the window beside the front door+
'8
The men introduced themsel0es as policemen,
''
but the
appellant could not understand them as she could not spea$ !nglish+
'1
The policemen allowed "angan to communicate
with appellant Aee by sign language and pointed their uniforms to her to show that they were policemen+ The
appellant then opened the door and allowed the policemen, "angan and the security guards into the condominium
unit+
'2
The policemen brought appellant Aee to the second floor where there were three bedrooms 3 a masterGs
bedroom and two other rooms+ Hhen as$ed where she and Aao slept, appellant Aee pointed to the masterGs
bedroom+
'7
.nciro, 9r+, >argallo and "<2 Hilhelm Castillo then searched the masterGs bedroom, while Ferias and
"angan went to the other bedroom where appellant ]hen &ua was sleeping+
':
Ferias awa$ened appellant ]hen &ua
and identified himself as a policeman+ .ppellant ]hen &ua was surprised+
'6
.nciro, 9r+ saw a small cabinet inside the masterGs bedroom about six feet high+ &e stood on a chair, opened the
cabinet and found two transparent plastic bags each containing one $ilo of shabu,
')
a feeding bottle, a plastic
canister
'*
and assorted paraphernalia+
'(
;nside the drawer of the bedGs headboard, .nciro, 9r+ also found assorted
documents, pictures, ban$ passboo$s issued by the .llied ,an$ing Corporation, credit cards, passports and
identification cards of Aao and Aee+
18
.nciro, 9r+ as$ed appellant Aee who was the owner of the crystalline substance,
but the latter did not respond because she did not $now !nglish+
1'
.nciro, 9r+ as$ed >argallo for instructions on what
to do with the things he had found, and the latter told him to $eep the same for future reference,
11
and as e0idence
against any other suspect for illegal drug transactions+
12
.nciro, 9r+, "angan and >argallo later showed the seiBed
articles to the other members of the team+
17
.nciro, 9r+ told appellant Aee to bring some of her clothes because they were bringing her to the ".4.C head/uarters+
.ppellant Aee did as she was told and too$ some clothes from the cabinet in the masterGs bedroom where .nciro, 9r+
had earlier found the shabu+
1:
The policemen brought the appellants to the ".4.C head/uarters+ The following articles were found and confiscated
by the policemen in the condominium unit:
.+ TH< (1) ,ig Transparent "lastic ,ags containing about one (') %ilo each of white crystalline granules later tested
to be >ethamphetamine &ydrochloride or Shabu, a regulated drugF
b+ <5! (') Transparent "lastic ,aby Feeding ,ottle containing an undetermined /uantity of suspected ShabuF
c+ <5! (') Small "lastic Cannister also containing undetermined amount of suspected Shabu G+
d+ .ssorted "ieces of Shabu "araphernalia consisting of ;mpro0ised Tooters used for sniffing shabu, ;mpro0ised
,urners used for burning Shabu, aluminum foils, etc+F
16
.nciro, 9r+ placed the articles he found in the cabinet inside a box+
1)
The appellants were then brought to the ".4.C
head/uarters where they were detained+ "angan signed a Certification
1*
that the search conducted by the policemen
had been orderly and peaceful+ .nciro, 9r+ affixed his initials on the transparent plastic bags and their contents, the
transparent baby feeding bottle and the plastic cannister and their contents+ <n <ctober 16, '((6, he and
Ferias
1(
brought the seiBed items to the "5" Crime Aaboratory for laboratory examination
28
along with the letter3
re/uest
2'
thereon+
<n the same day, Forensic Chemist <fficer ;sidro A+ CariRQo signed Chemistry 4eport 5o+ -3'1723(6 which contained
his findings on the laboratory examination of the items which were mar$ed as !xhibits C.C to C.37,C 0iB:
S"!C;>!5 SD,>;TT!-:
!xh+ C.C 3 <ne (') Cmust de Cartier "arisC carton containing the following:
!xh+ C.3'C 3 <ne (') heat3sealed transparent plastic bag containing ',888+78 grams of white crystalline substance+
!xh+ C.31C 3 <ne (') heat3sealed transparent plastic bag containing ((*+'8 grams of white crystalline substance+
!xh+ C.32C 3 <ne (') transparent plastic C,abyflo 5urserC feeding bottle with pin$ co0er containing '*+:1 grams of
white crystalline substance+
!xh+ C.37C 3 <ne (') transparent plastic container with white co0er containing 2+1* grams of white crystalline
substance+
5<T!: The abo0e3stated specimen were allegedly ta$en from the residence of the abo0e3named sub@ects+ xxx
"D4"<S! <F A.,<4.T<4Y !J.>;5.T;<5:
To determine the presence of prohibited andor regulated drug+
F;5-;5=S:
#ualitati0e examination conducted on the abo0e3stated specimens, !xhs+ C.3'C through C.37C ga0e "<S;T;?! result to
the test for >ethamphetamine hydrochloride, a regulated drug+ xxx
21
The police officers executed an affida0it of arrest+
22
"angan and the two security guards signed a certification stating
that nothing was destroyed in the condominium unit and that the search was orderly and peaceful+
27
The policemen
also accomplished an in0entory of the articles seiBed during the search+
2:
The appellants were charged of 0iolation of Section '6, 4ep+ .ct 5o+ 671:, as amended, in an ;nformation filed in the
4TC of "araRQa/ue, >etro >anila, the accusatory portion of which reads:
That on or about the 16th day of <ctober '((6, in the >unicipality of "araRQa/ue, >etro >anila, "hilippines, and
within the @urisdiction of this &onorable Court, the abo0e3named accused, conspiring and confederating together and
both of them mutually helping and aiding one another, not being lawfully authoriBed to possess or otherwise use any
regulated drug and without the corresponding license or prescription, did then and there willfully, unlawfully and
feloniously ha0e, in their possession and under their control and custody, the following to wit:
.+ <ne (') heat3sealed transparent plastic bag containing ',888+78 grams of white crystalline substanceF
,+ <ne (') heat3sealed transparent plastic bag containing ((*+' grams of white crystalline substanceF
C+ <ne (') transparent plastic C,abyflo 5urserC feeding bottle with pin$ co0er containing '*+:1 grams of white
crystalline substanceF
-+ <ne (') transparent plastic container with white co0er containing 2+1* grams of white crystalline substance
which when examined were found to be positi0e for >ethamphetamine &ydrochloride (Shabu), a regulated drug+
C<5T4.4Y T< A.H+
26
,oth appellants, assisted by counsel, were duly arraigned on 5o0ember 1(, '((1, and pleaded not guilty to the
charge+
The Case for the .ppellants
.ppellant 9ogy Aee denied the charge+ She testified that she was a resident of %wantong, China, a college graduate
who could not spea$ nor understand !nglish+ She was once employed in a real estate firm+ <ne of her co3employees
was &uang ]hen &ua+
2)
She met &enry Aao in China sometime in '((:,
2*
and he brought her to ,elgium that same
year+ Aao also helped her procure a ,elguim passport, for he explained that if she only had a Chinese passport, it
would be difficult to secure 0isas from countries she wanted to go to and 0isitF whereas many countries did not re/uire
a ,elgian passport holder to secure 0isas before allowing entry therein+ ;n the process, he and Aao fell in lo0e and
became lo0ers+
Dpon AaoGs in0itation, appellant Aee 0isited the "hilippines as a tourist for the first time in .pril '((6+ Aao met her at
the airport, and she was, thereafter, brought to a hotel in >anila where she stayed for less than a month+
2(
She
returned to the "hilippines a second time and was again billeted in a hotel in >anila+ .ll her expenses were shouldered
by Aao, who was engaged in the garlic business+
78
.s far as she $new, Aao was not engaged in any other business+
7'
;n
9une '((6, she in0ited her friend, appellant &uang ]hen &ua to 0isit the "hilippines to en@oy the tourist spots+
71
They
were then in China+
;n the e0ening of <ctober ', '((6, appellant Aee returned to the "hilippines on a tourist 0isa+ She was fetched by Aao,
and she was brought to his condominium unit at 5o+ '(, .tlantic -ri0e, "acific =rand ?illa, Sto+ 5iRQo, "araRQa/ue+
She had been residing there since then+ She and Aao used to go to the shopping malls
72
and she e0en saw Chan once
when he cleaned his 5issan car in AaoGs garage+
<n <ctober 11, '((6, appellant ]hen &ua arri0ed from China at the 5.;. and was met by Aao at the airport+ &e tried
to chec$ in at the -iamond &otel but Aee told him that he could stay in the condominium unit+ ]hen &ua was brought
to the ?illa where he had been staying since then+ The appellants had made plans to 0isit Cebu+
.t about 6:88 a+m+ on <ctober 16, '((6, appellant Aee was sleeping in the masterGs bedroom at the condominium
unit+ She had closed all the windows because she had turned the air conditioning unit on+ ]hen &ua was sleeping in
the other bedroom in the second floor beside the masterGs bedroom+ AaoGs &onda Ci0ic car and ChanGs 5issan car were
in the garage beside the condominium unit+ >omentarily, Aee heard someone $noc$ing on the bedroom door+ Hhen
she opened it, three (2) policemen barged into the bedroom and at the room where appellant ]hen &ua was sleeping+
.nciro, 9r+ was not among the men+ Aee did not hear the policemen $noc$ at the main door before they entered+
77
The
policemen were accompanied by Chuang, a Cantonese interpreter, who told her that the policemen were going to
search the house+
7:
.ppellant Aee saw a policeman holding two papers, but no search warrant was shown to her+
76
She
was so frightened+
The policemen placed two plastic bags on the bed before they searched the masterGs bedroom+ .ppellant Aee went to
the room of appellant ]hen &ua and when she returned to the masterGs bedroom, she saw shabu on the bed+
7)
The
policemen too$ her ring, watch and the "688,888 owned by Aao which had earlier been placed in the cabinet, her
papers and documents, and those of AaoGs as well+ She had ne0er seen any shabu in the room before the incident+
Thereafter, she and appellant ]hen &ua were brought to the ".4.C head/uarters where they were detained+ Chuang,
the cantonese interpreter, informed her that shabu had been found in the condominium unit and that the policemen
were demanding ":,888,888 for her release+ She was also told that if she did not pay the amount, she would be
charged with drug traffic$ing, and that the leader of the group who arrested her would be promoted+ &owe0er, she
told Chuang that she had no money+ Since she could not pay the amount, she was boarded on a ".4.C owner3type
@eep and returned to the condominium unit where the policemen too$ all the household appliances, such as the
tele0ision, compact discs, washing machine, including laundry detergent+ <nly the sofa and the bed were not ta$en+
.bout ten ('8) days later, the appellants secured the ser0ices of counsel+
.ntonio "angan testified that he and the policemen $noc$ed on the door to the condominium unit but that no one
responded+ &e shouted, CSir &enry,C referring to Aao, but there was no response from inside the condominium+ .fter
about three (2) to fi0e (:) minutes, a policeman $ic$ed the door open and they entered the house+ They went to the
second floor and saw the appellants sleeping+
"angan testified that he did not see any shabu that was seiBed by the policemen+ &e learned that shabu had been
found and ta$en from the condominium unit only when he saw someone holding up the substance on tele0ision during
the daily news program T? "atrol+
7*
.ppellant ]hen &ua also denied the charge+ &e corroborated the testimony of appellant Aee that upon her in0itation,
he arri0ed in the "hilippines on a tourist 0isa on <ctober 11, '((6+ &e claimed that he did not see .nciro, 9r+ in the
condominium unit when policemen arri0ed and searched the house+ &e testified that aside from the ".4.C policemen,
he was also in0estigated by policemen from Taiwan+
.fter trial, the court rendered @udgment on 9anuary '8, '(((, con0icting both appellants of the crime charged+ The
decretal portion of the decision reads:
H&!4!F<4!, "4!>;S!S C<5S;-!4!-, finding accused 9ogy Aee and &uang ]hen &ua =D;ATY beyond reasonable
doubt for 0iolation of Sec+ '6, .rt+ ;;;, 4. 671:, as amended by 4. )6:(, and considering the absence of any
aggra0ating circumstances, this Court hereby sentences both accused to suffer the penalty of 4eclusion "erpetua and
to pay a fine of ":88,888+88 each+ The properties seiBed in accordance with the search warrants issued relati0e to this
case are hereby ordered confiscated in fa0or of the go0ernment and the Cler$ of Court of this Court is directed to turn
o0er to the -angerous -rugs ,oard, the drugs and paraphernalia sub@ect hereof for proper disposition+
The Cler$ of Court is also directed to prepare the >ittimus for the immediate transfer of both accused 9ogy Aee and
&uang ]hen &ua from the "araRQa/ue City 9ail to the ,ureau of Correccions (sic) in >untinlupa City+
S< <4-!4!-+
7(
/& $%&'&n. A88&a0
<n appeal to this Court, appellant ]hen &ua, asserts that:
First+ The e0idence for the prosecution, as a whole, is so far as self3contradictory, inherently improbable and palpably
false to be accepted as a faithful reflection of the true facts of the caseF
Second+ .ppellant &uang ]hen &uaGs con0iction was based merely on the trial courtGs conclusion that he Cis not an
epitome of first class tourist and that he appeared nonchalant throughout the proceedingsFC
Third+ ;n con0icting said appellant, the court below completely disregarded the glaring facts and admissions of the
prosecutionGs principal witnesses that no regulated drug was e0er found in his possessionF
Fourth+ The trial court, li$ewise, ignored the fact that the appellantGs arrest was illegal and in 0iolation of his
constitutional and basic rights against arrest without probable cause as determined by a 9udge and that his
arraignment did not constitute a wai0er of such rightF
Fifth+ The trial court failed to consider the fact that the presumption of regularity of performance of the police officers
who too$ part in the search had been o0ercome by prosecutionGs own e0idence, thereby wrongly gi0ing such
presumption substance o0er and abo0e the constitutional presumption of innocence of the appellant+
:8
For her part, appellant Aee contends that:
'+8' T&! .AA!=!- TH< %;A<S <F S&.,D F<D5- ;5S;-! <5! <F T&! 4<<>S ;5 T&! T<H5&<DS! 4!5T!- ,Y
&!54Y A.D H!4! >!4!AY "A.5T!- ,Y ".4.C <"!4.T;?!SF
'+81 T&! ;>"A!>!5T.T;<5 <F T&! S!.4C& H.44.5T H.S &;=&AY ;44!=DA.4, -D,;<DS .5- D54!.S<5.,A! .S
T&! S!.4C& H.44.5T -;- 5<T C<5T.;5 .5Y ".4T;CDA.4 -!SC4;"T;<5 <F T&! 4<<> T< ,! S!.4C&!-, 5<4
H.S T&!4! .5Y ;5T!4"4!T!4 T< .SS;ST .5- =D;-! 9<=Y A!!, H&< 5!;T&!4 %5!H 5<4 D5-!4ST.5- T&!
!5=A;S& A.5=D.=!, -D4;5= T&! S!.4C& .5- !?!5 -D4;5= T&! T4;.AF
1+ T&! A<H!4 C<D4T !44!- ;5 5<T .C#D;TT;5= .CCDS!- 9<=Y A!! D"<5 T&! =4<D5- T&.T &!4 =D;AT H.S
5<T !ST.,A;S&!- ,Y "4<<F ,!Y<5- 4!.S<5.,A! -<D,T+
:'
For its part, the <ffice of the Solicitor =eneral (<S=) posits that appellant ]hen &ua should be ac/uitted on the
ground of reasonable doubt, but that the con0iction of appellant Aee should be affirmed+
/& !,+%.;' R+0(n)
He shall del0e into and resol0e the assigned errors of the appellants &uang ]hen &ua and 9ogy Aee se/uentially+
On A88&00an. "/&n H+a
The <S= contends that the prosecution failed to muster the re/uisite /uantum of e0idence to pro0e appellant ]hen
&uaGs guilt beyond reasonable doubt for the crime charged, thus:
&uang ]hen &ua denies ha0ing anything to do with the bags of CshabuC found in the townhouse unit of &enry Aau+ &e
claims that he arri0ed in the "hilippines as a tourist on <ctober 11, '((6, upon the in0itation of 9ogy Aee+ .llegedly, at
the time of his arrest, he had been in the "hilippines for barely four days+ &e claims that he was @ust temporarily
billeted as a guest at the townhouse where 9ogy Aee was staying+ .nd that he had no control whatsoe0er o0er said
townhouse+ &e puts emphasis on the fact that the search of his room turned out to be Cnegati0eC and that the raiding
team failed to seiBe or confiscate any prohibited or regulated drug in his person or possession+ &e, therefore, prays for
his ac/uittal+
The "eople submits that &uang ]hen &ua is entitled to ac/uittal+ The prosecutionGs e0idence fails to meet the
/uantum of e0idence re/uired to o0ercome the constitutional presumption of innocenceF thus, regardless of the
supposed wea$ness of his defense, and his innocence may be doubted, he is nonetheless entitled to an ac/uittal
(5ati0idad 0+ Court of .ppeals, (* SC4. 22: ('(*8), cited in "eople 0+ Fronda, =+4+ 5o+ '28681, >arch ':, 1888)+
The constitutional presumption of innocence guaranteed to e0ery indi0idual is of primary importance, and the
con0iction of the accused must rest not on the wea$ness of the defense but on the strength of the e0idence for the
prosecution+
;n the instant case, as pointed out by appellant &uang ]hen &ua, the trial court erred when it did not gi0e much
weight to the admission made by the prosecution witnesses that no regulated drug was found in his person+ 5o
regulated drug was also found inside his room or in his other belongings such as suitcases, etc+ Thus, he had no actual
or constructi0e possession of the confiscated Cshabu+C
>oreo0er, it is not disputed that &uang ]hen &ua had only been in the country for barely four (7) days at the time
when he was arrested+ The prosecution was unable to show that in these four (7) days &uang ]hen &ua committed
acts which showed that he was in cahoots with the drug syndicate &enry Aau and "eter Chan+ ;t was not e0en shown
that he was together with &enry Aau and "eter Chan on any occasion+ .s for &uang ]hen &ua, therefore, there is no
direct e0idence of any culpability+ 5or is there any circumstantial e0idence from which any culpability may be
inferred+
:1
He agree with the <S=+ ;n a case of recent 0intage, this Court, in "eople 0+ Tira,
:2
ruminated and expostulated on the
@uridical concept of CpossessionC under Section '6, .rticle ;;; of 4ep+ .ct 5o+ 671:, as amended, and the e0idence
necessary to pro0e the said crime, thus:
The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in
possession of a regulated drugF (b) the person is not authoriBed by law or by duly constituted authoritiesF and, (c) the
accused has $nowledge that the said drug is a regulated drug+ This crime is mala prohibita, and, as such, criminal
intent is not an essential element+ &owe0er, the prosecution must pro0e that the accused had the intent to possess
(animus posidende) the drugs+ "ossession, under the law, includes not only actual possession, but also constructi0e
possession+ .ctual possession exists when the drug is in the immediate physical possession or control of the accused+
<n the other hand, constructi0e possession exits when the drug is under the dominion and control of the accused or
when he has the right to exercise dominion and control o0er the place where it is found+ !xclusi0e possession or
control is not necessary+ The accused cannot a0oid con0iction if his right to exercise control and dominion o0er the
place where the contraband is located, is shared with another+
Thus, con0iction need not be predicated upon exclusi0e possession, and a showing of non3exclusi0e possession would
not exonerate the accused+ Such fact of possession may be pro0ed by direct or circumstantial e0idence and any
reasonable inference drawn therefrom+ &owe0er, the prosecution must pro0e that the accused had $nowledge of the
existence and presence of the drug in the place under his control and dominion and the character of the drug+ Since
$nowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and
control is an internal act, the same may be presumed from the fact that the dangerous drug is in the house or place
o0er which the accused has control or dominion, or within such premises in the absence of any satisfactory
explanation+
:7
;n this case, the prosecution failed to pro0e that the appellant, at any time, had actual or constructi0e possession of
the regulated drug found in the masterGs bedroom where appellant Aee was sleepingF or that the appellant had
accessed the said room at any gi0en timeF or that he had $nowledge of the existence of shabu in appellant AeeGs
bedroom+ .ppellant ]hen &ua had arri0ed in the "hilippines upon the in0itation of appellant Aee only on <ctober 11,
'((6 or barely four (7) days before the arri0al of the policemen and the search conducted in the condominium unit
leased by &enry Aao+ &e was a mere 0isitor of appellant Aee+ There is no e0idence that appellant ]hen &ua was aware
of the alleged illegal drug acti0ities andor transactions of &enry Aao, "eter Chan and appellant Aee+ The policemen did
not find any regulated drug in the room where appellant ]hen &ua was sleeping when they made their search+
The e0idence of the prosecution against appellant ]hen &ua falls short of the re/uisite /uantum of e0idence to pro0e
conspiracy between him, appellant Aee and Chan or Aao+
There is conspiracy when two or more persons agree to commit a crime and decide to commit it+
::
Conspiracy cannot
be presumed+
:6
Conspiracy must be pro0ed beyond reasonable doubt li$e the crime sub@ect of the
conspiracy+
:)
Conspiracy may be pro0ed by direct e0idence or by proof of the o0ert acts of the accused, before, during
and after the commission of the crime charged indicati0e of a common design+
:*
The bare fact that on two or three occasions after the arri0al of appellant ]hen &ua from China, and before the search
conducted in AaoGs condominium unit, appellant ]hen &ua had been seen with Aao, Chan and appellant Aee+ &a0ing
dinner or lunch at a restaurant does not constitute sufficient proof that he had conspired with them or with any of
them to possess the sub@ect3regulated drug+ >ere association with the principals by direct participation or mere
$nowledge of conspiracy, without more, does not suffice+
:(
.nciro, 9r+ e0en admitted that during his sur0eillance, he
could ha0e mista$en appellant ]hen &ua for another group of Chinese persons who were also being
watched+
68
.ppellant ]hen &ua should, thus, be ac/uitted+
On A88&00an. L&&
.ppellant Aee a0ers that certain irregularities were attendant in the issuance and implementation of Search Harrant
5o+ (63*81, as follows: (a) the policemen who implemented the search warrant failed in their duty to show to her the
said warrant, inform her of their authority and explain their presence in the condominium unitF (b) the policemen
gained entry into the condominium unit by force while she was sleepingF and (c) articles and personal effects owned
by her and Aao were ta$en and confiscated by the policemen, although not specified in the search warrant+
The appellant concludes that the articles procured by the policemen on the occasion of the search of the condominium
unit are inadmissible in e0idence+
.ppellant Aee, li$ewise, contends that she was a 0ictim of a frame3up because the policemen planted the regulated
drug on her bed e0en before they searched the bedroom+ She went to the room of appellant ]hen &ua to find out if he
was already awa$e, and when she returned to the bedroom, she noticed shabu on her bed+ She a0ers that the sole
testimony of .nciro, 9r+, that he found the regulated drug in the masterGs bedroom, is incredible because he was not
with the policemen who barged into the bedroom+ She notes that e0en "angan, the careta$er of the ?illa, testified
that he did not see any illegal drug confiscated by the policemen+
.ccording to appellant Aee, the trial court erred in con0icting her of the crime charged, considering that Aao and Chan
were the suspects identified in the search warrants, not her+ She a0ers that she had no $nowledge of the alleged
illegal drug transactions of her lo0er Aao+ She contends that there was no probable cause for her arrest as her mere
presence in the condominium unit does not render her liable for the shabu found in the masterGs bedroom of the
condominium unit leased by Aao+ She further a0ers that the testimonies of the witnesses for the prosecution are
inconsistentF hence, barren of probati0e weight+ The appellant also asserts that she was depri0ed of her right to due
process when the trial court conducted a trial without a Chinese interpreter to assist her+
The <S=, for its part, a0ers that the police officers are presumed to ha0e performed their duties+ ,ased on the
testimony of .nciro, 9r+, appellant Aee was shown the search warrant, through the window, and the policemen
identified themsel0es through their uniforms+ The security guards of the condominium also explained the search
warrant to the appellant+ .lthough she was, at first, reluctant to open the door, appellant Aee later 0oluntarily opened
the door and allowed them entry into the unit+ There was no e0idence of forcible entry into the unit and no brea$age
of any door+ The <S= further a0ers that the appellant had been in the country for /uite sometime already and could
not ha0e gotten around without understanding !nglish+ ;n fact, the <S= argues that when .nciro, 9r+ told the
appellant to get some of her clothes since she would be brought to the police head/uarters in #ueBon City, she did as
she was told and too$ her clothes from the cabinet where the shabu were found by the policemen+
The <S= further points out that "angan, the chief of security of the subdi0ision who was a witness for appellant Aee,
e0en testified that the search was orderly+ The <S= contends that there was probable cause for the appellantGs arrest
because an informant had tipped off the arresting officers that the appellant was a member of a syndicate dealing
with illegal drugs, and that she handled the accounts of Aao and Chan+ The appellant was not a 0ictim of frame3up
because she was present when the policemen searched the masterGs bedroom where she was sleeping and where she
$ept her clothes, and witnessed the disco0ery of the regulated drugs and paraphernalia+
He agree with the contention of the appellant that the constitutional proscription against unreasonable search and
seiBure applies to Filipino citiBens, as well as to aliens temporarily residing in the country+ The rule against
unreasonable search and seiBure forbids e0ery search that is unreasonableF it protects all those suspected or $nown to
be offenders, as well as the innocent+ The guarantee is as important and imperati0e as the guarantee of the other
fundamental rights of the citiBens+
6'
.ll owes the duty for its effecti0e enforcement lest there shall be an impairment of
the right for the purpose for which it was adopted+
61
Section ), 4ule '16 of the 4e0ised 4ules of Criminal "rocedure pro0ides:
S!C+ )+ Right to brea3 2oor or 0in2o0 to effe#t sear#h. 3 The officer, if refused admittance to the place of directed
search after gi0ing notice of his purpose and authority, may brea$ open any outer or inner door or window of a house
or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him
when unlawfully detained therein+
The police officers were obliged to gi0e the appellant notice, show to her their authority, and demand that they be
allowed entry+ They may only brea$ open any outer or inner door or window of a house to execute the search warrant
if, after such notice and demand, such officers are refused entry to the place of directed search+ This is $nown as the
C$noc$ and announceC principle which is embodied in .nglo3.merican Aaw+ The method of entry of an officer into a
dwelling and the presence or absence of such notice are as important considerations in assessing whether subse/uent
entry to search andor arrest is constitutionally reasonable+
62
;n =ouled 0+ The Dnited States,
67
it was held that a lawful
entry is the indispensable predicate of a reasonable search+ . search would 0iolate the Constitution if the entry were
illegal, whether accomplished by force, by illegal threat or mere show of force+
The principle may be traced to a statute in !ngland way bac$ in '1): pro0iding that Cif a person ta$es the beasts of
another and causes them to be dri0en into a castle or fortress, if the sheriff ma$es a solemn demand for the
deli0erance of the beasts, and if the person did not cause the beasts to be deli0ered incontinent, the $ing shall cause
the said castle or fortress to be beaten down without reco0ery+C Common law courts appended an important
/ualification:
,ut before he brea$s it, he ought to signify the cause of his coming, and to ma$e re/uest to open doors G, for the law
without a default in the owner abhors the destruction or brea$ing of any house (which is for the habitation and safety
of man) by which great damage and incon0enience might ensue to the party, when no default is in himF for perhaps
he did not $now of the process, of which, if he had noticed, it is to be presumed that he would obey itG
6:
,lac$stone simply stated the principle that the sheriff may @ustify brea$ing open doors if the possession be not /uietly
deli0ered+
66
The principle was wo0en /uic$ly into the fabric of early .merican law and in the Fourth .mendment in the
Dnited States Federal Constitution+ ;t is an element of the reasonableness in/uiry under the Fourth .mendment as
held in Hilson 0+ .r$ansas+
6)
=enerally, officers implementing a search warrant must announce their presence, identify themsel0es to the accused
and to the persons who rightfully ha0e possession of the premises to be searched, and show to them the search
warrant to be implemented by them and explain to them said warrant in a language or dialect $nown to and
understood by them+ The re/uirement is not a mere procedural formality but is of the essence of the substantial
pro0ision which safeguards indi0idual liberty+
6*
5o precise form of words is re/uired+ ;t is sufficient that the accused
has notice of the officers, their authority and the purpose of the search and the ob@ect to be seiBed+ ;t must be
emphasiBed that the notice re/uirement is designed not only for the protection of the liberty of the person to be
searched or of his property but also the safety and well3being of the officers ser0ing and implementing the search
warrant+ Dnless the person to whom the warrant is addressed and whose property is to be searched is notified of the
search warrant and apprised of the authority of the person ser0ing the warrant, he may consider the unannounced
intrusion into the premises as an unlawful aggression on his property which he will be @ustified in resisting, and in the
process, may cause in@ury e0en to the life of the officer implementing the warrant for which he would not be criminally
liable+ .lso, there is a 0ery real possibility that the police ser0ing and implementing the search warrant may be
misinformed as to the name or address of the suspect, or to other material affirmations+ ;nnocent citiBens should not
suffer the shoc$, fright, shame or embarrassment attendant upon an unannounced intrusion+
6(
;ndeed, a lawful entry
is the indispensable predicate of a reasonable search+ . search would 0iolate the constitutional guarantee against
unreasonable search and seiBure if the entry were illegal, whether accomplished by force, or by threat or show of
force or obtained by stealth, or coercion+
)8
Dnannounced intrusion into the premises is permissible when (a) a party whose premises or is entitled to the
possession thereof refuses, upon demand, to open itF (b) when such person in the premises already $new of the
identity of the officers and of their authority and personsF (c) when the officers are @ustified in the honest belief that
there is an imminent peril to life or limbF and (d) when those in the premises, aware of the presence of someone
outside (because, for example, there has been a $noc$ at the door), are then engaged in acti0ity which @ustifies the
officers to belie0e that an escape or the destruction of e0idence is being attempted+ Suspects ha0e no constitutional
right to destroy e0idence or dispose of e0idence+
)'
&owe0er, the exceptions abo0e are not exclusi0e or conclusi0e+ .t
times, without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide whether or
not to ma$e an unannounced intrusion into the premises+ .lthough a search and seiBure of a dwelling might be
constitutionally defecti0e, if the police officersG entry was without prior announcement, law enforcement interest may
also establish the reasonableness of an unannounced entry+
)1
;ndeed, there is no formula for the determination of
reasonableness+ !ach case is to be decided on its own facts and circumstances+
)2
;n determining the lawfulness of an
unallowed entry and the existence of probable cause, the courts are concerned only with what the officers had reason
to belie0e and the time of the entry+
)7
;n 4ichards 0+ Hisconsin,
):
it was held that:
K'L ;n order to @ustify a Cno3$noc$C entry, the police must ha0e a reasonable suspicion that $noc$ing and announcing
their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effecti0e
in0estigation of the crime by, for example, allowing the destruction of e0idence+ This standard as opposed to a
probable3cause re/uirementGstri$es the appropriate balance between the legitimate law enforcement concerns at issue
in the execution of search warrants and the indi0idual pri0acy interest affected by no3$noc$ entries+
)6
.s articulated in ,enefield 0+ State of Florida,
))
what constitutes brea$ing includes the lifting of a latch, turning a door
$nob, unloc$ing a chain or hasp, remo0ing a prop to or pushing open a closed door of entrance to the house, e0en a
closed screen door+
)*
&owe0er, entry obtained through the use of deception, accomplished without force is not a
Cbrea$ingC re/uiring officers to first announce their authority and purpose because the reasons behind the rule are
satisfied 3 there was no real li$elihood of 0iolence, no unwarranted intrusion or pri0acy and no damage to the
residence of the accused+
)(
.s to how long an officer implementing a search warrant must wait before brea$ing open any door cannot be distilled
into a constitutional stopwatch+ !ach case has to be decided on a case3to3case basis re/uiring an examination of all
the circumstances+
*8
The proper trigger point in determining, under the C$noc$ and announceC rule, whether the police
waited long enough before entering the residence to execute a warrant, is when those inside should ha0e been alerted
that the police wanted entry to execute a warrant+
*'
;n this case, we rule that the policemen complied with Section ), 4ule '16 of the 4e0ised 4ules of Criminal "rocedure
before entering the condominium unit+ .ppellant Aee admitted, when she testified, that the police officers were
accompanied by Chuang, a Cantonese interpreter, who informed her that his companions were police officers and had
a search warrant for the premises, and also explained to her that the officers were going to search the condominium
unit+
*1
The appellant was sufficiently aware of the authority of the policemen, who wore ".4.C uniforms, to conduct
the search and their purpose+ >oreo0er, .nciro, 9r+ told the appellant, in !nglish, to bring some clothes with her as
she was to be brought to the police head/uarters+ Hithout such re/uest being interpreted to the appellant, the latter
did as she was directed and too$ some clothes from the cabinet atop the headboard+
*2
The e0idence on record shows that the police officers $noc$ed on the outer door before entering the condominium
unit, and after a while, the appellant opened the door and allowed the policemen and "angan to enter+ .nciro, 9r+
testified, thus:
# -o you still recall >r+ Hitness the identities of the security guards who helped you or assisted you in implementing
said search warrants at =rand ?illa Subdi0isionIchanrobles0irtualawlibrary
. The <;C of the &ome <wnersG .ssociation, .ntonio "angan, and the <;C of the Security .gency and two (1) other
security guards+
# -o you recall the names of those persons you mentioned >r+ HitnessIchanrobles0irtualawlibrary
. ; can hardly recall their names+
# .fter ha0ing been assisted or coordinated with said security officers and the <;C of the &ome <wnersG .ssociation,
what did you do nextIchanrobles0irtualawlibrary
. He told them that if we could as$ them if they ha0e a duplicate $ey and also $noc$ and introduce oursel0es, $noc$
on the said condominium+
# -id they do that, the re/uestIchanrobles0irtualawlibrary
. Yes, Sir+
# >eaning to say, you arri0ed at c'( .tlantic -ri0e, "acific =rand ?illaIchanrobles0irtualawlibrary
. Yes, Sir+
# Hhile you were already at the door of that targeted house to implement said search warrants, what happened next,
if anyI Hhat did you do after thatIchanrobles0irtualawlibrary
. He $noc$ed on the door and tried to find out if there was somebody there because the &ome <wnersG .ssociation
doesnGt ha0e any $ey for the door+ He as$ed them to $noc$ also because they are the ones who ha0e access with the
tenants+
# .nd after $noc$ing, what happened nextIchanrobles0irtualawlibrary
. There were around : minutes, no one was trying to open the door+ ,y that time, we thought they were still asleep+
# .nd then after that what did you do, if anyIchanrobles0irtualawlibrary
. He as$ed >r+ "angan to $noc$ and introduce himself and another security guard to try to $noc$ on the $itchen
which is on the bac$ door+
# .nd then after thatIchanrobles0irtualawlibrary
. .nd then after that, it was a female person who showed up to (sic) the window of the $itchen and as$ed who we are
in a sign language+
# .nd this female person who showed up to (sic) the window 3 ; withdraw+ Here you able to ha0e a good loo$ on that
female person who showed herself thru the windowIchanrobles0irtualawlibrary
. Yes, Sir+
# .nd who is this person >r+ HitnessIchanrobles0irtualawlibrary
. She was identified as 9ogy Aee, Sir+
*7
The appellant failed to pro0e that the policemen bro$e open the door to gain entry into the condominium unit+ She
could ha0e as$ed the court for an ocular inspection to show the door which was allegedly bro$en into by the
policemen, or at least adduce in e0idence pictures showing the said brea$age+ The appellant failed to do so+ The
testimony of the appellant is e0en belied by "angan, who was a witness for the appellant, who certified, along with
three other security guards, that nothing was destroyed and that the search was conducted in a peaceful and orderly
manner+
*:
He are not imper0ious of the testimony of "angan that the policemen $ic$ed the outer door to gain entry into the
condominium unit, which testimony is seemingly in derogation of his certification+ &owe0er, "angan admitted that the
policemen did so only after $noc$ing on the door for three (2) to fi0e (:) minutes and after he had called Aao in a loud
0oice and recei0ed no response from the appellants:
# -id you come to $now the persons wherein your presence was being re/uired according to your security guardsIchanrobles0irtualawlibrary
. .ccording to my security guards, they introduced themsel0es as police operati0es+
# -id you comply with the in0itation of these police authoritiesIchanrobles0irtualawlibrary
. Yes, they called me and according to them, they will search Dnit '(, that is what they told me+
# Can you please tell us what time did the police operati0es conduct the searchIchanrobles0irtualawlibrary
. ; cannot recall anymore because the incident happened in '((6+ ; donGt $now what time was that+
# Hhen they conducted the search, were you thereIchanrobles0irtualawlibrary
. ; was there because that unit cannot be opened if the careta$er is not present+
# .re you trying to say that you were the one who opened the door of that unit occupied by &enry %au ChungIchanrobles0irtualawlibrary
. They $ic$ed the door and when nobody opened the door, they pushed the door and the door was opened+
# They forcibly opened the door when nobody opened itIchanrobles0irtualawlibrary
. %aya naman po ginawa Gyon dahil nandoon naman po ang careta$er, wala naman pong masamang mangyayari dahil
nandoon naman po ang namamahala+
# From the time you $noc$ed at the door of this unit up to the time that the police operati0es forcibly brea$ open the
door, how many minutes had elapsedIchanrobles0irtualawlibrary
. >atagal din po silang $uma$ato$ sa pintuan+ ; said, C>r+ &enry, pa$ibu$san n yo ang pinto, would you mind to open
the door, $asi merong mga police officers na gustong ma3search itong unit mo+ Then, when nobody was answering,
they forcibly opened the door+
# Has there any other occupant other than &enry %au Chung in that unit at that timeIchanrobles0irtualawlibrary
. .t the second floor, they saw this 9ogy Aee and her male companion whom ; do not $now+
# ,ut during the time that you were trying to see$ entry to the door, there was no one who responded, is that
correctIchanrobles0irtualawlibrary
. "ardon, SirIchanrobles0irtualawlibrary
# .t the time that you were trying to $noc$ at the door, there was no one who responded to your $noc$ing at the
doorIchanrobles0irtualawlibrary
. 5obody was answering, Sir+
# .nd that compelled the police operati0es to open the door forciblyIchanrobles0irtualawlibrary
. Yes, Sir+
*6
C<D4T:
From the first time you $noc$ed at the door, how long a time lapsed before the police officer bro$e open the doorIchanrobles0irtualawlibrary
. >atagal din po+
# For how longIchanrobles0irtualawlibrary
. >aybe for about three to fi0e minutes+
# Hhen nobody was answering, they forced open the doorIchanrobles0irtualawlibrary
. Yes, Your &onor+
C<D4T:
Continue+
*)
The appellant failed to pro0e, with clear and con0incing e0idence, her contention that .nciro, 9r+ placed the shabu on
her bed before he continued his search in the bedroom, and that she was a 0ictim of frame3up by the policemen+ She
relied on her testimony and those of "angan and Ferias that they did not see .nciro, 9r+ disco0er and ta$e custody of
the shabu in the cabinet+
The appellantGs defense of frame3up is nothing new+ ;t is a common and standard line of defense in most prosecutions
for 0iolation of the -angerous -rugs Aaw+ Hhile such defense cannot and should not always be considered as
contri0ed, nonetheless, it is generally re@ected for it can easily be concocted but is difficult to pro0e+ "olice officers
are, after all, presumed to ha0e acted regularly in the performance of their official functions, in the absence of clear
and con0incing proof to the contrary, or that they are moti0ated by ill3will+
**
;t is true, as testified by "angan and Ferias that, they did not see .nciro, 9r+ disco0er and ta$e custody of the shabu
sub@ect of this case+ &owe0er, as explained by "angan, he remained in the ground floor of the condominium unit while
.nciro, 9r+, Castillo and >argallo searched the bedroom of appellant Aee and her lo0er Aao, and Ferias proceeded to
the room occupied by appellant ]hen &ua where he conducted his search+ Thus, "angan testified:
# Hhen the masterGs bedroom was searched where 9ogy Aee was then, according to you, sleeping, did you
accompany the ".4.C membersIchanrobles0irtualawlibrary
. 5o, Sir, because ; was tal$ing to a member of the ".4.C downstairs+
# Hhat about the members of the security forceIchanrobles0irtualawlibrary
. They were outside, Sir+
# -uring the search made on the masterGs bedroomIchanrobles0irtualawlibrary
. Yes, Sir+
# &ow about when the search was made in the room occupied by &uang ]hen &ua, were you present thenIchanrobles0irtualawlibrary
. 5o, Sir, ; was still downstairs+
# &ow about the other guardsIchanrobles0irtualawlibrary
. They were also outside+
*(
For his part, Ferias declared:
# ;n other words, you did not go inside the biggest roomIchanrobles0irtualawlibrary
. 5o, Sir+
# You proceeded to another room where co3accused &uang ]hen &ua was then sleepingIchanrobles0irtualawlibrary
. Yes, Sir+
# Hhat happened nextIchanrobles0irtualawlibrary
. He wo$e up &uang ]hen &ua and we introduced oursel0es to him as police officers+
# Hhat was the reaction of &uang ]henhuaIchanrobles0irtualawlibrary
. &e was surprised+
(8
# ;n other words, you did not go inside the biggest roomIchanrobles0irtualawlibrary
. 5o, Sir+
# You proceeded to another room where co3accused &uang ]hen &ua was then sleepingIchanrobles0irtualawlibrary
. Yes, Sir+
# Hhat happened nextIchanrobles0irtualawlibrary
. He wo$e up &uang ]hen &ua and we introduced oursel0es to him as police officers+
# Hhat was the reaction of &uang ]hen &uaIchanrobles0irtualawlibrary
. &e was surprised+
('
"angan testified that before the police officers conducted their search in the second floor of the condominium unit, he
did not see them bring in anything:
# ,ut you are 0ery sure that before the police officers searched the unit, you did not see them bringing anything with
them, they were all empty3handedIchanrobles0irtualawlibrary
. ; did not see, Sir+
(1
5o less than "angan himself, a witness for the appellants, and three of the security guards of the subdi0ision, who
accompanied the policemen in implementing the search warrants, certified that, what was found inside the
condominium unit and confiscated by the policemen were two plastic bags which contained white crystalline powder
substances suspected to be shabu+
(2
The appellant admitted that she saw shabu in her bedroom while the policemen were there+ She claimed that the
policemen placed the plastic bag on the bed before they started the search and that she noticed the shabu only after
he returned from the room of appellant ]hen &ua to see if he was already awa$e is hard to belie0e+
First+ He find it incredible that the policemen placed the shabu on the appellantGs bed, in her full 0iew, for which the
latter could be prosecuted for planting e0idence and, if con0icted, sentenced to death under Section '( of 4ep+ .ct
)6:(:
S!CT;<5 '(+ Section 17 of 4epublic .ct 5o+ 671:, as amended, $nown as the -angerous .ct of '()1, is hereby
amended to read as follows:
Sec+ 17+ "enalties for =o0ernment <fficials and !mployees and <fficers and >embers of "olice .gencies and the
.rmed Forces, G"lantingG of !0idence+G The maximum penalties pro0ided for KinL Section 2, 7('), :('), 6, ), *, (, '',
'1 and '2 of .rticle ;; and Sections '7, '73., ':('), '6 and '( of .rticle ;;; shall be imposed, if those found guilty of
any of the said offenses are go0ernment officials, employees or officers, including members of police agencies and the
armed forces+
.ny such abo0e go0ernment official, employee or officer who is found guilty of CplantingC any dangerous drugs
punished in Sections 2, 7, ), *, ( and '2 of .rticle ;; and Sections '7, '73., ': and '6 of .rticle ;;; of this .ct in the
person or in the immediate 0icinity of another as e0idence to implicate the latter, shall suffer the same penalty as
therein pro0ided+
Second+ The appellant failed to inform her counsel of the alleged planting of e0idence by the policemenF if she had
done so, for sure, the said counsel would ha0e prepared her affida0it and filed the appropriate motion in court for the
suppression of the thingsarticles seiBed by the policemen+
Third+ The appellant failed to charge the policemen with planting of e0idence before or after she was charged of
0iolation of 4ep+ .ct 5o+ 671:, as amended+
Fourth+ The appellant cannot e0en identify and describe the policeman or policemen who allegedly planted the
e0idence+
The fact is that, as gleaned from the affida0it of arrest signed by .nciro, 9r+ and Ferias, the articles and substances
found and confiscated from the condominium unit of Aao and appellant Aee at .tlantic -ri0e and at the Cityland
condominium unit of Aao and Chan were itemiBed as follows:
.+ TH< (1) ,ig Transparent "lastic ,ags containing about one (') $ilo each of white crystalline granules later tested to
be >ethamphetamine &ydrochloride or Shabu, a regulated drugF
b+ <5! (') Transparent "lastic ,aby Feeding ,ottle containing undetermined /uantity of suspected ShabuF
c+ <5! (') Small "lastic Canister also containing undetermined amount of suspected ShabuG
d+ .ssorted "ieces of Shabu "araphernalia consisting of ;mpro0ised Tooters used for sniffing shabu, ;mpro0ised
,urners used for burning Shabu, aluminum foils, etc+F
.+ TH< (1) %ettles"ots containing more or less ' 3 $ilos of 4aw Shabu or >ethamphetamine &ydrochlorideF
b+ Two (1) ,ig Transparent "lastic ,ags containing more or less Two (1) %ilos of ShabuF
c+ Three (2) "lastic ,asins, small, medium, large, used for containers of finishedcoo$ed ShabuF
c+ Se0eral pieces of "lastic Strainers used for draining out li/uids from finished ShabuF
e+ <ne (') "lastic Container with li/uid chemical of undetermined elementF
f+ Se0eral pieces of Spoons and ladles with traces of raw Shabu used in stirring mixtures
g+ <ne (') !lectric Coo$ing Sto0e wone coil burnerF
h+ <ne (') Dnit Card >a$ing >achineF
i+ <ne (') Dnit Card Stamping >achineF
@+ Se0eral pieces of Credit Cards and Telephone CardsF
(7
.nciro, 9r+ placed his initials on the plastic bags containing white crystalline powder which were found and confiscated
at .tlantic -ri0e and, in the company of Ferias, deli0ered the same to the "5" Crime Aaboratory for examination, per
the re/uest of "olice Superintendent 9anice "+ de =uBman, the chief of the ".4.C+
He agree with the appellant that she was not one of the accused named in the search warrants+ &owe0er, such fact
did not proscribe the policemen from arresting her and charging her of 0iolation of 4ep+ .ct 5o+ 671:, as amended+
There was, in fine, probable cause for her warrantless arrest independent of that found by 9udge Hilliam ,ayhon when
he issued the search warrants against Aao and Chan for search of the condominium units at .tlantic -ri0e and
Cityland+
"robable cause exists for the warrantless detention and arrest of one at the premises being searched when the facts
and circumstances within their $nowledge and of which they had reliable and trustworthy information are sufficient to
themsel0es warrant a reasonable belief of a cautious person that an offense has been or is being committed+
(:
;t has
been held that:
"robable cause for the arrest of petitioner -iane %er, while not present at the time the officers entered the apartment
to arrest her husband, was ne0ertheless present at the time of her arrest+ Dpon their entry and announcement of their
identity, the officers were met not only by =eorge %er but also by -iane %er, who was emerging from the $itchen+
<fficer ,erman immediately wal$ed to the doorway from which she emerged and, without entering, obser0ed the
bric$3shaped pac$age of mari@uana in plain 0iew+ !0en assuming that her presence in a small room with the
contraband in a prominent position on the $itchen sin$ would not alone establish a reasonable ground for the officersG
belief that she was in @oint possession with her husband, that fact was accompanied by the officersG information that
%er had been using his apartment as a base of operations for his narcotics acti0ities+ Therefore, we cannot say that at
the time of her arrest there were no sufficient grounds for a reasonable belief that -iane %er, as well as her husband,
were committing the offense of possession of mari@uana in the presence of the officers+
(6
;n -raper 0+ Dnited States,
()
it was held that informations from a reliable informant, corroborated by the police
officerGs obser0ations as to the accuracy of the description of the accused, and of his presence at a particular place, is
sufficient to establish probable cause+ ;n this case, the police officers recei0ed reliable information and 0erified, after
sur0eillance, that appellant Aee and Aao were li0ing together as husband and wife in the condominium unit and that
appellant Aee handled the accounting of the payments and proceeds of the illegal drug traffic$ing acti0ities of Aao+
;ndeed, the policemen found that the appellant occupied the bedroom and slept in the same bed used by Aao+ The
appellant too$ her clothes from the same cabinet where the sub@ect shabu and paraphernalia were found by .nciro,
9r+ The appellant had been li0ing in the same condominium unit with Aao since <ctober ', '((6 until her arrest on
<ctober 1:, '((6+ .long with Aao, the appellant thus had @oint control and possession of the bedroom, as well as of
the articles, paraphernalia, and the shabu found therein+ Such facts and circumstances are sufficient on which to base
a reasonable belief that the appellant had @oint possession of the regulated drugs found in the bedroom along with
Aao, her li0e3in partner, in line with our ruling in "eople 0+ Tira+
(*
For the purpose of prosecution for 0iolation of the
-angerous -rugs Aaw, possession can be constructi0e and need not be exclusi0e, but may be @oint+
((
.dmittedly, .nciro, 9r+ seiBed and too$ custody of certain articles belonging to the appellant and Aao which were not
described in the search warrants+ &owe0er, the seiBure of articles not listed in a search warrant does not render the
seiBure of the articles described and listed therein illegalF nor does it render inadmissible in e0idence such articles
which were described in the warrant and seiBed pursuant thereto+ >oreo0er, it bears stressing that .nciro, 9r+ saw the
unlisted articles when he and the other policemen implemented the search warrants+ Such articles were in plain 0iew
of .nciro, 9r+ as he implemented the search warrants and was authoriBed to seiBe the said articles because of their
close connection to the crime charged+ .s held in Coolidge, 9r+ 0+ 5ew &ampshire:
'88
.n example of the applicability of the Gplain 0iewG doctrine is the situation in which the police ha0e a warrant to search
a gi0en area for specified ob@ects, and in the course of the search come across some other article of incriminating
character+G
Hhere the initial intrusion that brings the police within plain 0iew of such an article is supported, not by a warrant, but
by one of the recogniBed exceptions to the warrant re/uirement, the seiBure is also legitimate+ Thus, the police may
inad0ertently come across e0idence while in Ghot pursuitG of a fleeing suspect+ 3 .nd an ob@ect that comes into 0iew
during a search incident to arrest that is appropriately limited in scope under existing law may be seiBed without a
warrant+G Finally, the Gplain 0iewG doctrine has been applied where a police officer is not searching for e0idence against
the accused, but nonetheless inad0ertently comes across an incriminating ob@ect+ G
'8'
;t cannot be denied that the cards, passboo$, passport and other documents and papers seen by the policemen ha0e
an intimate nexus with the crime charged or, at the 0ery least, incriminating+ The passport of the appellant would
show when and how often she had been in and out of the country+ &er credit cards and ban$ boo$ would indicate how
much money she had amassed while in the country and how she ac/uired or earned the same+ The pictures and those
of the other persons shown therein are rele0ant to show her relationship to Aao and Chan+
'81
Contrary to the claim of the appellant, it is not true that the trial court failed to pro0ide an interpreter when she
testified+ The records show that a Cantonese interpreter attended the trial and interpreted her testimony+ The 4ules of
Court does not re/uire the trial court to pro0ide the appellant with an interpreter throughout the trial+ .n interpreter is
re/uired only if the witness on the stand testifies in a language other than in !nglish or is a deaf 3 mute+ The appellant
may procure the ser0ices of an interpreter at her own expense+
Contrary to the claim of appellant Aee, the prosecution adduced proof beyond reasonable doubt of her guilt of the
crime charged+ She and Aao, her lo0er, had @oint possession of the shabu which the policemen found and confiscated
from her bedroom+
IN LIGH O7 ALL HE 7OREGOING, the appeal of appellant &uang ]hen &ua is GRANED+ The -ecision of the
4egional Trial Court of "araRQa/ue City, con0icting him of the crime charged, is REVER#ED AND #E A#IDE+ The
said appellant is A!<6IED of said charge+ The -irector of the ,ureau of Corrections is hereby directed to release
the said appellant from detention unless he is detained for another cause or charge, and to submit to the Court, within
fi0e (:) days from notice hereof, a report of his compliance with the directi0e of the Court+
The appeal of appellant 9ogy Aee is DENIED+ The -ecision dated 9anuary '8, '(((, of the 4egional Trial Court of
"araRQa/ue City, con0icting her of 0iolation of Section '6, 4ep+ .ct 5o+ 671: is A77IRMED+ 5o costs+
[G.R. N,. 82101. *+0y 14, 1225.]
LEON AM=A#EN, Petitioner, 3. $EO$LE O7 HE $HILI$$INE#, 2ND A##I#AN $ROVIN!IAL $RO#E!6OR
GLORIA LA#IMO#A MAR!O# and HON. !I!ERO 6. <6ER6=IN (n /(' :a8a:(.y a' $%&'(d(n) *+d)& ,- ./&
R&)(,na0 %(a0 !,+%. ,- N&)%,' O::(d&n.a0, =%an:/ 44, =a:,0,d !(.y, Respondents.
R,d,0-, V . G+45an and *,'& * . D(a> -,% Petitioner.
#,0(:(.,% G&n&%a0 -,% 8+50(: Respondent.
#9LLA=6#
'+ 4!>!-;.A A.HF C4;>;5.A "4<C!-D4!F S!.4C& H.44.5TSF ;SSD.5C! T&!4!<F F<4 ><4! T&.5 <5!
S"!C;F;C <FF!5S! "4<&;,;T!-+ b <n its face, the search warrant 0iolates Section 2, 4ule '16 of the 4e0ised 4ules
of Court, which prohibits the issuance of a search warrant for more than one specific offense+ The caption of Search
Harrant 5o+ 26: reflects the 0iolation of two special laws: "+-+ 5o+ '*66 for illegal possession of firearms,
ammunition and explosi0esF and 4+.+ 5o+ ')88, the .nti3Sub0ersion Aaw+ Search Harrant 5o+ 26: was therefore a
Cscatter3shot warrantC and totally null and 0oid+
1+ ;-+F ;-+F ;-+F S!;]D4! <F .4T;CA!S 5<T -!SC4;,!- T&!4!;5 ?;<A.T;?! <F S!CT;<5 1, .4T;CA! ;;; <F T&!
'(*) C<5ST;TDT;<5+ b ,y their seiBure of articles not described in the search warrant, the police acted beyond the
parameters of their authority under the search warrant+ Section 1, .rticle ;;; of the '(*) Constitution re/uires that a
search warrant should particularly describe the things to be seiBed+ CThe e0ident purpose and intent of the
re/uirement is to limit the things to be seiBed to those, and only those, particularly described in the search warrant b
to lea0e the officers of the law with no discretion regarding what articles they should seiBe, to the end that
unreasonable searches and seiBures may not be made and that abuses may not be committed+C The same
constitutional pro0ision is also aimed at pre0enting 0iolations of security in person and property and unlawful
in0asions of the sanctity of the home, and gi0ing remedy against such usurpations when attempted+
2+ ;-+F ;-+F ;-+F !?;-!5C! <,T.;5!- ;5 ?;<A.T;<5 <F 4;=&T .=.;5ST D54!.S<5.,A! S!.4C&!S .5- S!;]D4!
;5.->;SS;,A!+ b Section 2(1) of .rticle ;;; of the '(*) Constitution pro0ides that e0idence obtained in 0iolation of
the right against unreasonable searches and seiBures shall be inadmissible for any purpose in any proceeding+
D E ! I # I O N
<6IA#ON, J.:
This is a petition for #ertiorari and prohibition under 4ule 6: of the 4e0ised 4ules of Court to set aside the order dated
9uly 18, '(*( of the 4egional Trial Court (4TC), ,ranch 77, ,acolod City in Ci0il Case 5o+ :22', which nullified with
order earlier issued by the >unicipal Trial Circuit Court (>TCC) of the City of ,acolod+ The >TCC <rder directed the
return to petitioner of the amount of "'7,888+88 which had been seiBed by the police+chanrobles+com : 0irtual law library
;
<n .ugust 2', '(**, " Sgt+ Flumar 5atuel applied for the issuance of a search warrant from the >TCC, alleging that
he recei0ed information that petitioner had in his possession at his house at the 5orth Capitol 4oad, ,acolod City, C>3
'6 .rmalite 4ifles (>ags E .mmos), &and =renades, +7: Cal+ "istols (>ags E .mmos), -ynamite Stic$s and
Sub0ersi0e -ocuments,C which articles were Cused or intended to be usedC for illegal purposes (4ollo, p+ '7)+ <n the
same day, the application was granted by the >TCC with the issuance of Search Harrant 5o+ 26:, which allowed the
seiBure of the items specified in the application (4oll, p+ ':)+
.t around 6:28 "+>+ of September (, '(**, a police team searched the house of petitioner and seiBed the following
articles:@gc:chanrobles+com+ph
C(') Two (1) en0elops containing cash in the total amount of "'7,888+88 (one en0elope "'8,888+88 and another
"7,888+88)F
(1) one (') .4 1*8 handset wantenae (sic) S53887*:F
(2) one (') Y.!SD F> Transcei0er FT 124 w .ntenae (sic)F
(7) one (') .A;5C< !A& 128- ,aseF
(:) one (') -C 4egulator Supply ':8 ?+ '2+* ? '1 .>" b ?.CF
(6) one (') brown .cademy 5oteboo$ E .ssorted papersF and
()) Four (7) handsets battery pac$C (4ollo, p+ '6)+
<n September '(, '(**, the >TCC acting on petitioners urgent motion for the return of the seiBed articles, issued an
order directing Sgt+ 5atuel to ma$e a return of the search warrant+ The following day, Sgt+ 5atuel submitted a report
to the court+ 5ot considering the report as a Creturn in contemplation of law,C petitioner filed another motion praying
that Sgt+ 5atuel be re/uired to submit a complete and 0erified in0entory of the seiBed articles+ Thereafter, Sgt+ 5atuel
manifested that although he was the applicant for the issuance of the search warrant, he was not present when it was
ser0ed+cralawnad
<n <ctober ), '(**, petitioner filed before the >TCC a motion praying that the search and seiBure be declared illegal
and that the seiBed articles be returned to him+ ;n his answer to the motion, At+ Col+ 5icolas Torres, the station
commander of the ,acolod City "olice, said that the amount of "'7,888+88 had been earmar$ed for the payment of
the allowance of the .rmed City "artisan (.C") and other C$nown 5". personalitiesC operating in the City of ,acolod+
<n -ecember 12, '(**, the >TCC issued an order directing At+ Col+ Torres to return the money seiBed to petitioner+
The court opined that in the implementation of the search warrant, any seiBure should be limited to the specific items
co0ered thereby+ ;t said that the money could not be considered as Csub0ersi0e documentsC F it was neither stolen nor
the effects of gambling+
Three months later, the Solicitor =eneral filed before the 4TC ,ranch 77, ,acolod City a petition for #ertiorari see$ing
the annulment of the order of the >TCC (Ci0il Case 5o+ :22')+ The petition alleged that assuming that the seiBure of
the money had been in0alid, petitioner was not entitled to its return citing the rulings in .lih 0+ Castro, ':' SC4. 1)(
('(*)) and 4oan 0+ =onBales, '7: SC4. 6*) ('(*6)+ ;n those cases, the Court held that pending the determination of
the legality of the seiBure of the articles, they should remain in custodia legis+ The petition also a0erred that a criminal
complaint for Cany of the crimes against public order as pro0ided under Chapter ;, Title ;;; of the 4e0ised "enal CodeC
had been filed with the City Fiscal (,C ;+S+ 5o+ **3'12() and therefore, should the money be found as ha0ing been
earmar$ed for sub0ersi0e acti0ities, it should be confiscated pursuant to .rticle 7: of the 4e0ised "enal Code+chanrobles 0irtual lawlibrary
<n 9uly 18, '(*( 4TC, ,ranch 77 issued an order granting the petition for #ertiorari and directing the cler$ of court to
return to the >TCC the money pending the resolution of the preliminary in0estigation being conducted by the city
prosecutor on the criminal complaint+ ;n said order, the 4TC held:@gc:chanrobles+com+ph
CThe Court obser0ed that pri0ate respondent Aeon Tambasen ne0er /uestioned the 0alidity of the search warrant
issued by respondent 9udge -emosthenes A+ >agallanes+ . perusal of pri0ate respondent^s >otion to -eclare Search
and SeiBure ;llegal and to 4eturn SeiBed "roperties^ dated <ctober ), '(** shows that respondent Tambasen
/uestions not the 0alidity of the search warrant issued by respondent 9udge -emosthenes >agallanes, but rather, the
execution or implementation of the said warrant principally on the ground that the articles seiBed are not allegedly
mentioned in the search warrant+ &owe0er, the /uestion thus raised in0ol0es matters determinati0e of the
admissibility in e0idence and the legality of the articles seiBed+ These matters, it is submitted, go beyond the
immediate and limited @urisdiction of the respondent 9udge to in/uire into the 0alidity of the search warrant he issued+
These issues which relate exclusi0ely or principally with the intrinsic and substanti0e merits of the case or cases which
are being prepared against respondent Tambasen, and insofar as Tambasen is concerned in0ol0e matters of defense
which should be properly raised at the criminal action or actions that may be filed against respondent Aeon Tambasen
(see -<& 0+ Sy Chi Siong Co+, ;nc+ !t+ .l+, =+4+ 5o+ *:1*(, Feb+ 18, '(*()+ They cannot be addressed to the
respondent 9udge because the respondent 9udge has no @urisdiction o0er the said issue+ ;t is clear therefore that
respondent 9udge has transcended the boundaries of his limited @urisdiction and had in effect encroached upon the
@urisdiction of the appropriate trial court or courts that will try the criminal case or cases against respondent Aeon
Tambasen, in issuing the assailed order dated -ecember 12, '(**+ <stensibly, the assailed order, if not corrected, will
unduly depri0ed the prosecution of its right to present the e0idence in /uestion and conse/uently will improperly oust
the trial court, which will try the criminal case or cases against pri0ate respondent Aeon Tambasen of its original and
exclusi0e @urisdiction to rule on the admissibility and legality of the said e0idence+ This order of respondent court is
tantamount to a denial of due process+ ;t may be considered as a gra0e abuse of discretion re0iewable
by #ertiorari (!sparagoBa 0+ Tan, (7 "hil+ )7()C (4ollo , pp+ 7)37*)+
Conse/uently, petitioner filed the instant petition for #ertiorari and prohibition praying for the issuance of a temporary
restraining order commanding the city prosecutor to cease and desist from continuing with the preliminary
in0estigation in ,C ;+S+ 5o+ **3'12( and the 4TC from ta$ing any step with respect to Ci0il Case 5o+ :22'+ &e also
prayed that Search Harrant 5o+ 26: and the seiBure of his personal effects be declared illegal and that the <rder of
9uly 18, '(*( be re0ersed and annulled+
"etitioner contended that the search warrant co0ered three offenses:C (') illegal possession of armalite rifle and +7:
cal+ pistolF (1) illegal possession of hand grenade and dynamite stic$sF and (2) illegal possession of sub0ersi0e
documentsC (4ollo, pp+ 237) in 0iolation of Section 2 of 4ule '16 of the 4e0ised 4ules of Court+ &e assailed the legality
of the seiBure of the articles which were not mentioned in the search warrant+ >oreo0er, since a complaint against
him was filed only after his house had been searched, petitioner claimed that the police were Con a fishing
expedition+Ccralaw 0irtua'awlibrary
-uring the pendency of the instant petition, a series of e0ents related to the /uestioned search and seiBure transpired+
.t around '8:28 "+>+ of >arch ', '((8, 4etitioner, who was then on board a passenger 0ehicle, was arrested by
intelligence operati0es in ,arangay >andalagan, ,acolod City and forthwith detained+ <n the strength of sworn
statements of two rebel returnees, the police filed a complaint for sub0ersion against petitioner with the <ffice of the
City "rosecutor+ The following day, the City "rosecutor filed an information for 0iolation of the .nti3Sub0ersion Aaw
against petitioner with 4TC, ,ranch 71, ,acolod City (Criminal Case 5o+ *:'))+ .n order for the arrest of petitioner
was issued on >arch 1, '((8+
<n >arch 6, '((8, petitioner filed a motion to /uash the information in Criminal Case 5o+ *:')+
<n >arch ':, '((8, 4TC, ,ranch 71 granted petitioner^s motion to /uash and recalled the warrant of arrest+ The court
also directed the City "rosecutor to resol0e ,C3;+S+ Case 5o+ **3'12(+
<n >arch 18, '((8, .ssistant "ro0incial "rosecutor =loria Aastimosa >arcos manifested before 4TC, ,ranch 71 that
petitioner had been CdroppedC from ,C3;+S+ 5o+ **3'12(+ &owe0er, the City "rosecutor had, by then, filed a motion
for the reconsideration of said 4esolution of >arch ':, '((8+ The motion was denied+
Dnder this factual matrix, this Court is confronted with the /uestion of whether 4TC, ,ranch 77 gra0ely abused its
discretion in directing that the money seiBed from petitioner^s house, specifically the amount of "'7,888+88, be
retained and $ept in custodia legis+
<n its face, the search warrant 0iolated Section 2, 4ule '16 of the 4e0ised 4ules of Court, which prohibits the
issuance of a search warrant for more than one specified offense+ The caption of Search Harrant 5o+ 26: reflects the
0iolation of two special laws: "+-+ 5o+ '*66 for illegal possession of firearms, ammunition and explosi0esF and 4+.+
5o+ ')88, the .nti3Sub0ersion Aaw+ Search Harrant 5o+ 26: was therefore a Cscatter3shot warrantC and totally null
and 0oid ("eople 0+ Court of .ppeals, 1'6 SC4. '8' K'((1L)+
>oreo0er, by their seiBure of articles not described in the search warrant, the police acted beyond the parameters of
their authority under the search warrant+ Section 1, .rticle ;;; of the '(*) Constitution re/uires that a search warrant
should particularly describe the things to be seiBed+ CThe e0ident purpose and intent of the re/uirement is no limit the
things to be seiBed to those, and only those, particularly described in the search warrant b to lea0e the officers of the
law with no discretion regarding what articles they should seiBe, to the end that unreasonable searches and seiBures
may not be made and that abuses may not be committedC (Corro 0+ Aising, '2) SC4. :7', :7) K'(*:L)F ,ache E Co+
K"hil+L, ;nc+ 0+ 4uiB, 2) SC4. *12 K'()'LF Dy %heytin 0+ ?illareal, 71 "hil+ **6 K'(18L)+ The same constitutional
pro0ision is also aimed at pre0enting 0iolations of security in person and property and unlawful in0asions of the
sanctity of the home, and gi0ing remedy against such usurpation^s when attempted ("eople 0+ -amaso, 1'1 SC4.
:7) K'((1L citing .l0ero 0+ -iBon, )6 "hil+ 62), 676 K'(76L)+cralawnad
Clearly then, the money which was not indicated in the search warrant, had been illegally seiBed from petitioner+ The
fact that the members of the police team were doing their tas$ of pursuing sub0ersi0e is not a 0alid excuse for the
illegal seiBure+ The presumption @uris tantum of regularity in the performance of official duty cannot by itself pre0ail
against the constitutionally protected rights of an indi0idual ("eople 0+ CruB, 12' SC4. ):( K'((7LF "eople 0+ ?eloso,
7* "hil+ '6(, ')6 K'(1:L)+ .lthough public welfare is the foundation of the power to search and seiBe, such power
must be exercised and the law enforced without transgressing the constitutional rights of the citiBens ("eople 0+
-amaso, supra, citing 4odrigueB 0+ !0angelista , 6: "hil+ 128, 12: K'(2)L)+ .s the Court aptly puts it in ,agalihog 0+
FernadeB, '(* SC4. 6'7 ('(('),C KBLeal in the pursuit of criminals cannot ennoble the use of arbitrary methods that
the Constitution itself abhors+Ccralaw 0irtua'aw library
For the retention of the money seiBed by the police officers, appro0al of the court which issued the search warrant is
necessary ("eople 0+ =esmundo, 1'( SC4. )72 K'((2L)+ ;n li$e manner, only the court which issued the search
warrant may order their release (Templo 0+ -ela CruB, 68 SC4. 1(: K'()7LF "ag$alinawan 0+ =omeB, 1' SC4. '1):
K'(6)L)+
Section 2(1) of .rticle ;;; of the '(*) Constitution pro0ides that e0idence obtained in 0iolation of the right against
unreasonable searches and seiBured shall be inadmissible for any purpose in any proceeding+
The information in Criminal Case 5o+ *:'), with petitioner as the sole accused, was ordered /uashed by the trial court
and the prosecution^s motion for the reconsideration of the /uashal order had been denied+ !0en in ,C ;+S+ Case 5o+
**3'12(, which was being in0estigated by .ssistant "ro0incial "rosecutor >arcos, petitioner was dropped as
aRes1on2ent+ &ence, there appears to be no criminal prosecution which can @ustify the retention of the seiBed articles
in custodia legis+
. subse/uent legal de0elopment added another reason for the return to him of all the seiBed articles: 4+.+ 5o+ ')88,
the .nti3Sub0ersion Aaw, was repealed by 4+.+ 5o+ )626 and, therefore, the crimes defined in the repealed law no
longer exist+chanrobles+com+ph : 0irtual law library
H&!4!F<4!, the petition is =4.5T!- and the "eople of the "hilippines is <4-!4!- to 4!TD45 the money seiBed to
petitioner+
[G.R. NO. 151254 : #&8.&45&% 10, 2004]
$EO$LE O7 HE $HILI$$INE#, %11ellee, v. EDEN DEL !A#ILLO, %11ellant+
D E ! I # I O N
A6#RIA?MARINE", J.:
!den del Castillo appeals from the decision dated 9une 1), 188'
'
of the 4egional Trial Court of Cebu City, ,ranch '*,
in Criminal Case 5o+ C,D3:7))*, finding her guilty of 0iolation of Section '6, .rticle ;;; of 4+.+ 5o+ 671:, otherwise
$nown as -angerous -rugs .ct of '()1, as amendedF and imposing on her the penalty of re#lusion 1er1etua+
She was indicted under an ;nformation dated .ugust 1, 1888 which reads:
That on or about the 2'st day of 9uly 1888, at about '8:28 .+>+, in the City of Cebu, "hilippines, and within the
@urisdiction of this &onorable Court, the said accused, with deliberate intent and without being authoriBed by law, did
then and there ha0e in her possession and control or use the following:
. 3 Three (2) big heat sealed plastic pac$s of white crystalline substance weighing 1(7+*6 gramsF
, 3 !ight (*) medium heat sealed plastic pac$s of white crystalline substance weighing '1+22 gramsF
C 3 Fifty three (:2) heat sealed plastic pac$ets of white crystalline substance weighing 7+): grams
locally $nown as CshabuC, containing >ethylamphetamine &ydrochloride, a regulated drug, without the corresponding
license or prescription+
C<5T4.4Y T< A.H+
1
Dpon her arraignment, appellant, with the assistance of counsel, pleaded not guilty to the crime charged+
2
Trial
thereafter ensued+
The prosecution presented the following witnesses: "<2 Aeopoldo ,auBon, "<2 .lfredo "etallar, ";nsp+ >utchit
Salinas and "<1 ,raBilio ,orinaga+ Their testimonies pro0ed the following facts:
<n 9uly 1', 1888, a search warrant was issued by 9udge ;saias -ican of the 4egional Trial Court, ,ranch '', Cebu
City, authoriBing the search and seiBure of shabu and its paraphernalias in the house of appellant located in >+
,orgonia Street, &ayco, >abolo, Cebu City+
7
.t about '8:28 in the morning of 9uly 2', 1888, a team composed of
"olice Chief;nsp+ "ablo =acayan Aabra ;;, ,auBon, "etallar and ,orinaga, "<1 4icardo ,aclayon, 9r+ and "<' 9eric
Cuyos Toring, went to the sub@ect house to implement the search warrant+
:
The police officers accompanied by
three baranga tano2s, namely: Hilfredo Hasawas, >ansueto Toong and Aeonico Sagosa, entered the house, saw
appellant and ser0ed the warrant on her+
6
.t that time, appellant was with her grandmother !lena 4i0aral =arcia, the
registered owner of the house, and Ser0ando del Castillo, appellantGs brother, in the li0ing room+ The police officers
CpressedC them by telling them not to mo0e and they were as$ed to @ust sit down while the search was on3going+
)
The raiding team di0ided themsel0es into two searching groups+ The first group composed of ,auBon, Toring and
one baranga tano2 searched the upper portion of the house and found three large plastic pac$s of white crystalline
substance+
*
The second group, composed of ,aclayon and ,orinaga, searched the ground floor and found eight
medium heat3sealed plastic pac$s of white crystalline substance and fifty3three heat3sealed plastic pac$ets of white
crystalline substanceF two disposable lighters, one pair of scissors, one tooter, one puller and an impro0ised
hac$saw+
(
Ser0ando 0oluntarily surrendered fi0e small pac$s of white crystalline substance+
'8
.ppellant was arrested
and informed of her constitutional rights, specifically, the right to counsel to which she replied that she has a lawyer
who will represent her+
''
"etallar then prepared an in0entory of the seiBed articles and appellant was made to sign the
same+
'1
"<2 ,auBon and "<2 "etallar explained that the in0entory receipt was dated 9uly 17, 1888 although the raid
was conducted on 9uly 2' because their office had earlier prepared the blan$ form+
'2
. copy of the in0entory was gi0en
to a tano2
'7
and thereafter appellant and Ser0ando were brought to the police station while the items seiBed were
brought to the "hilippine 5ational "olice ("5") Crime Aaboratory for examination+
':
";nsp+ >utchit Salinas, chemist of the "5" 4egional Crime Aaboratory <ffice, who conducted the laboratory test on
these substances confirmed that the specimens submitted for testing were positi0e for the presence of
methamphetamine hydrochloride $nown as shabu+
'6
The defense presented the following witnesses: !lena 4+ =arcia, 9aime =arcia and appellant herself who testified to
establish the following facts:
The house sub@ect of the search on 9uly 2', 1888 was owned by !lena, appellantGs grandmother, and her late
husband, 9ose =arcia, as e0idenced by a copy of Tax -eclaration 5o+ 8'3286:' in the name of 9ose =arciaF
')
that only
,rent Aepiten, !lenaGs grandson, was li0ing in the house while appellant was li0ing with her parents in San ?icente
?illage, Hireless, >andaue City, a distance of about fi0e $ilometers from !lenaGs place+
'*
<n 9uly 2', 1888, !lena, who
was in the upper portion of the house with her son, 9aime, who happened to sleep in her house the night before
because he had a drin$ing spree with some friends, went downstairs because of the thudding sound from their
door+
'(
.ppellant, who was in the house to 0isit her grandmother, was ha0ing brea$fast when the door was opened+
Se0eral men entered the house and instructed them to sit down+ Two of these men carrying an en0elope went
upstairs and wo$e up 9aime =arcia+
18
9aime then went downstairs and these two men without the en0elope followed
two minutes later+
1'
.ppellant and the other occupants were told to wait for the arri0al of the tano2s+ Then, the same
two men who earlier went upstairs went up again with a tano2 and when they came down, they had with them an
en0elope, the contents of which were spread on the table and were listed down+
11
.ppellant was then as$ed to sign a
paper where a listing of the
contents of the en0elope was made but she re/uested to contact her lawyer which was denied+
12
She was forced to
sign otherwise she would be handcuffed+
17
The list of the in0entory was neither read to her nor did they lea0e a copy
for her or to any of the occupants+
1:
.ppellant declared that the search warrant was ser0ed on her but she ne0er read
it nor was it read to her+
16
<n 9une 1), 188', the trial court rendered its assailed decision
1)
finding appellant guilty as charged+ The decretal
portion of the decision reads:
H&!4!F<4!, finding accused !den del Castillo guilty beyond reasonable doubt of the crime charged, the accused is
hereby sentenced to suffer the penalty of 4eclusion "erpetua+ The seiBed or confiscated items are declared forfeited in
fa0or of the go0ernment and the same shall be disposed of in the manner allowed by law+
1*
;n con0icting appellant, the trial court ratiocinated:
.fter a careful analysis of the testimonial and documentary e0idence on record, the Court is of the well considered
0iew and so holds that the prosecution was able to establish the fact that the accused had indeed, with deliberate
intent and without being authoriBed by law, in her possession and control or use on or about 9uly 2', 1888 at about
'8:28 .+>+ the following:
. 3 Three (2) big heat sealed plastic pac$s of white crystalline substance weighing 1(7+*6 gramsF
, 3 !ight (*) medium heat sealed plastic pac$s of white crystalline substance weighing '1+22 gramsF
C 3 Fifty three (:2) heat sealed plastic pac$ets of white crystalline substance weighing 7+): grams
locally $nown as CshabuC, containing >ethylamphetamine &ydrochloride, a regulated drug, without the corresponding
license or prescription+ The members of the "hilippine 5ational "olice ("5"), by 0irtue of a Search Harrant issued
against !den =arcia del Castillo by 9udge ;saias -ican and implemented on 9uly 2', 1888 resulted in the ac/uisition of
said items+ The items were submitted to the "5" Crime Aaboratory for analysis and the result is positi0e for the
presence of >ethylamphetamine &ydrochloride, or locally $nown as shabu+ 5o less than the accused signed the
4eceipt for Confiscated .rticles signifying that the 4aiding Team of the "hilippine 5ational "olice had actually seiBed
and confiscated certain items or articles from the herein accused+ The prosecution then was able to establish the guilt
of the accused beyond reasonable doubt+
Section '6 of .rticle ;;; of 4epublic .ct 5o+ 671:, as amended, $nown as the -angerous -rugs .ct of '()1, as
amended by 4+.+ )6:( reads as follows:
S!C+ '6+ 4ossession or 5se of Regulate2 &rugs+ 3 The penalty of re#lusion 1er1etua to death and a fine ranging from
fi0e hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any
regulated drug without the corresponding license or prescription, sub@ect to the pro0isions of Section 18 hereof+
Section 18, .rticle ;? of 4epublic .ct 5o+ 671:, as amended, $nown as the -angerous -rugs .ct of '()1, as amended
by 4+.+ )6:( reads as follows:
S!C+ 18+ %11li#ation of 4enalties! Confis#ation an2 $orfeiture of the 4ro#ee2s or 6nstru'ents of the Cri'e+ 3 The
penalties for offenses under Sections 2, 7, ), * and ( of .rticle ;; and Sections '7, '73., ': and '6 of .rticle ;;; of
this .ct shall be applied if the dangerous drugs in0ol0ed is in any of the following /uantities:
+ + +
2+ 188 grams or more of shabu or methylampetamine hydrochlorideF + + +
1(
&ence, the instant appeal with the following assignment of errors:
28
;
T&! A<H!4 C<D4T !44!- ;5 F.;A;5= T< ST.T! ;5 ;TS 9D-=>!5T . CA!.4 .5- -;ST;5CT F;5-;5=S <F F.CTS
(H&;C&) "4<?!- T&.T .CCDS!- -;- 5<T <H5 T&! &<DS! H&;C& H.S S!.4C&!-+
;;
T&! A<H!4 C<D4T !44!- ;5 F.;A;5= T< ST.T! ;5 ;TS 9D-=>!5T T&.T T&! .4T;CA!S S!;]!- ,Y ?;4TD! <F .
S!.4C& H.44.5T H!4! 5<T TD45!- <?!4 T< T&! ;SSD;5= C<D4T ;5 ?;<A.T;<5 <F T&! A.H+
;;;
T&! A<H!4 C<D4T !44!- ;5 5<T F;5-;5= T&.T T&! 4.;-;5= T!.> F.;A!- T< ;SSD! . -!T.;A!- 4!C!;"T <F
S!;]!- .4T;CA!S .5- T< =;?! . C<"Y T&!4!<F T< T&! A.HFDA <CCD".5T ;5 ?;<A.T;<5 <F T&! A.H+
;?
T&! A<H!4 C<D4T !44!- ;5 5<T F;5-;5= T&.T ,Y T&! 4.;-;5= T!.> <4-!4;5= .CCDS!- T< S;=5 T&!
;5?!5T<4Y .FT!4 T&! .44!ST H;T&<DT T&! .SS;ST.5C! <F C<D5S!A ;S ?;<A.T;?! <F &!4 C<5ST;TDT;<5.A
4;=&T+
?
T&! A<H!4 C<D4T !44!- ;5 5<T F;5-;5= T&.T T&! 4.;- H.S ;5 ?;<A.T;<5 <F T&! "4;?.CY <F !A!5. 4+
=.4C;., .S <H5!4 <F T&! &<DS! ,!;5= S!.4C&!-, .5- 5<T T&! &<DS! <F .CCDS!- !-!5 -!A C.ST;AA<+
?;
T&! A<H!4 C<D4T !44!- ;5 5<T .C#D;TT;5= T&! .CCDS!-+
The <ffice of the Solicitor =eneral (<S=) filed a >anifestation and >otion in lieu of appelleeGs brief praying that the
decision under consideration be re0ersed and set aside and that the appellant be ac/uitted+
He agree with the <S=+ The appeal is meritorious+
Section '6 of .rticle ;;; of the -angerous -rugs .ct of '()1, as amended, pro0ides:
S!C+ '6+ 4ossession or 5se of Regulate2 &rugs+ 3 The penalty of re#lusion 1er1etua to death and a fine ranging from
fi0e hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any
regulated drug without the corresponding license or prescription, sub@ect to the pro0isions of Section 18 hereof+
The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in
possession of a regulated drugF (b) the person is not authoriBed by law or by duly constituted authoritiesF and, (c) the
accused has $nowledge that the said drug is a regulated drug+
;n 4eo1le v. Tira,
2'
we explained the concept of possession of regulated drugs, to wit:
This crime is mala prohibita, and as such, criminal intent is not an essential element+ &owe0er, the prosecution must
pro0e that the accused had the intent to possess (animus posidendi) the drugs+ "ossession, under the law, includes
not only actual possession, but also constructi0e possession+ .ctual possession exists when the drug is in the
immediate physical possession or control of the accused+ <n the other hand, constructi0e possession exists when the
drug is under the dominion and control of the accused or when he has the right to exercise dominion and control o0er
the place where it is found+ !xclusi0e possession or control is not necessary+ The accused cannot a0oid con0iction if
his right to exercise control and dominion o0er the place where the contraband is located, is shared with another+
Thus, con0iction need not be predicated upon exclusi0e possession, and a showing of non3exclusi0e possession would
not exonerate the accused+ Such fact of possession may be pro0ed by direct or circumstantial e0idence and any
reasonable inference drawn therefrom+ &owe0er, the prosecution must pro0e that the accused had $nowledge of the
existence of the presence of the drug in the place under his control and dominion and the character of the drug+ Since
$nowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and
control is an internal act, the same may be presumed from the fact that the dangerous drugs is in the house or place
o0er which the accused has control or dominion, or within such premises in the absence of any satisfactory
explanation+
"rosecution witnesses failed to establish that the house where the shabu and other shabu paraphernalias were found
belongs to appellant+ <n the other hand, defense e0idence clearly showed that the sub@ect house belongs to
appellantGs grandmother, !lena =arcia, who testified in direct examination as follows:
.TTY+ 4;?!4.A:
# You stated in your personal circumstances that you are a resident of >abolo, Cebu City+ -o you own a houseIchanrobles0irtualawlibrary
. Yes, ; owned a house+
# Hith whom are you li0ing therewithIchanrobles0irtualawlibrary
. >y grandson+
# Hhat is the name of your grandson li0ing with you at that houseIchanrobles0irtualawlibrary
. ,rent Aepiten+
# You stated that you owned a house in >abolo, Cebu City which was the sub@ect of the search+ -o you ha0e any
e0idence to show that you owned that houseIchanrobles0irtualawlibrary
. Yes, ; ha0e+
# Showing to you this machine copy which is Tax -eclaration 5o+ 8'3286:' in the name of 9ose =arcia+ ;s this the tax
declaration e0idencing your ownership and possession of your houseIchanrobles0irtualawlibrary
. Yes, that is the one+
# &ow are you related to 9ose =arciaIchanrobles0irtualawlibrary
. >y husband+
# Hhere is he nowIchanrobles0irtualawlibrary
. &e is already dead+
.TTY+ 4;?!4.A:
He re/uest Your &onor that the machine copy of the tax declaration be mar$ed as our !xhibit C'C+
C<D4T:
>ar$ it+
.TTY+ 4;?!4.A:
# The house which you mentioned belongs to you, how many storeys are thereIchanrobles0irtualawlibrary
. Two storeys+
.TTY+ 4;?!4.A:
# You mean the ground floor and the upper portionIchanrobles0irtualawlibrary
. Yes, sir+
# Hhere do you usually ta$e your rest in the e0eningIchanrobles0irtualawlibrary
. ;n the upper portion+
# -o you $now accused !den del CastilloIchanrobles0irtualawlibrary
. Yes, she is one of my grandchildren+
# Hhere is she li0ingIchanrobles0irtualawlibrary
. San ?icente ?illage, Hireless, >andaue City+
# ;s accused !den del Castillo still singleIchanrobles0irtualawlibrary
. She is still single+
# Hith whom is she li0ing with before the arrestIchanrobles0irtualawlibrary
. Together with her auntie !dna .balle+
# &ow about her parentsIchanrobles0irtualawlibrary
. Sometime(s) when they tra0eled at ,adian only !den is in the house together with her auntie but they stayed in
their house+
# <n 9uly 2', 1888 in that e0ening who was sleeping at the upper portion of your houseIchanrobles0irtualawlibrary
. >yself and my grandson+
# You are mentioning of 9aime, who is this 9aimeIchanrobles0irtualawlibrary
F;SC.A A.,<4T!:
The witness was only as$ed who slept at the upper portion and she answered myself and my grandson+
.TTY+ 4;?!4.A:
# You mentioned one 9aime =arcia, why was he thereIchanrobles0irtualawlibrary
. This 9aime was able to sleep in the house at that time considering that his wife was abroad+
+ + +
.TTY+ 4;?!4.A:
# That 9aime =arcia you said where did he ta$e his rest that nightIchanrobles0irtualawlibrary
. .t our house+
# ;n what portion thereofIchanrobles0irtualawlibrary
. .t the upper portion+
21
The e0idence of the prosecution failed to establish by competent e0idence that appellant is the owner or at least
shared the ownership of the house where the shabu was found+ "<2 "etallar testified that based on their own casing
operation, appellant fre/uented the sub@ect house to eat mealsF
22
that they were not sure that the house was owned
by appellant but only belie0ed that she had belongings therein since she fre/uented the same+
27
"<1 ,orinaga testified
it was a public $nowledge that appellant was li0ing in the sub@ect house since she was a child+
2:
Thus, there is no
competent e0idence that appellant had control and dominion o0er the place where the shabu was found+ The claim of
appellant that she has her residence in San ?icente ?illage, Hireless, >andaue City and that she was only a 0isitor in
the house that belongs to her grandmother at the time of the search was not rebutted by con0incing e0idence+
Hhile it is not necessary that the property to be searched or seiBed should be owned by the person against whom the
search warrant is issued, howe0er, there must be sufficient showing that the property is under appellantGs control or
possession+
26
The prosecution li$ewise failed to pro0e appellantGs possession of the shabu at the time of her arrest+ ;t bears
stressing that at the time the raiding team conducted the search, appellant and the other occupants were as$ed to
stay in the li0ing room+ "<2 "etallar did not find any drugs on appellantGs body nor was there anything unusual or
suspicious noted in her person+
2)
5otably, the policemen testified that they found the shabu in the upper portion of the house, howe0er, it was not
shown at all in whose room it was found+ ;n fact, the defense e0idence showed that at the time the two policemen
went upstairs, 9aime =arcia, appellantGs uncle, was asleep and was awa$ened by the policemen who as$ed him to go
down+ This was corroborated by "<1 ,orinaga who testified on cross3examination that while he was downstairs, there
was a person upstairs who came down+
2*
>oreo0er, it was appellantGs grandmother and the latterGs grandson, ,rent,
who were staying in the upper portion of the house+ .lso, the shabu found at the ground floor of the house does not
conclusi0ely establish that it belongs to appellant since it was not found together with the other things of appellant+ To
reiterate, she was not the only person who had access to the entire house+ ;n fact, it was also shown by the
prosecution that a certain Ser0ando, appellantGs brother, 0oluntarily surrendered fi0e small plastic pac$s of white
crystalline substance+ He find that the prosecution failed to pro0e con0incingly that the seiBed shabu belonged to
appellant+
>oreo0er, the manner in which the search was conducted on the sub@ect house failed to comply with the mandatory
pro0isions of Section * (formerly Section )), 4ule '16 of the 4ules of Court, which pro0ides:
S!C+ *+ ,ear#h of house! roo'! or 1re'ises! to be 'a2e in 1resen#e of t0o 0itnesses 3 5o search of a house, room,
or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family
or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality+
Clearly, the search of the house must be done in the presence of the lawful occupants and it is only in the absence of
the former that two witnesses of sufficient age and discretion residing in the same locality may be called upon to
witness the search+ Hhile appellant and the other occupants of the house were present during the search, they were
not allowed to actually witness the search of the premises+ They were in the words of the policemen Cpressed,C i+e+,
they were as$ed to stay put in the sala where they were seated while the simultaneous search was on3going in the
upper and lower portions of the house+
2(
They should be the ones that should ha0e accompanied the policemen while
the search was being done and not substituted by the baranga tano2s in their stead+ He held in 4eo1le v. 7o:
78
.s pointed out earlier, the members of the raiding team categorically admitted that the search of the upper floor,
which allegedly resulted in the reco0ery of the plastic bag containing the shabu, did not ta$e place in the presence of
either the lawful occupant of the premises, i+e+ appellant (who was out), or his son 9ac$ =o (who was handcuffed to a
chair on the ground floor)+ Such a procedure, whereby the witnesses prescribed by law are pre0ented from actually
obser0ing and monitoring the search of the premises, 0iolates both the spirit and the letter of the law:
Furthermore, the claim of the accused3appellant that the mari@uana was planted is strengthened by the manner in
which the search was conducted by the police authorities+ The accused3appellant was seated at the sala together with
Sgt+ Yte when they heard someone in the $itchen uttered Cito naC+ .pparently, the search of the accused3appellantGs
house was conducted in 0iolation of Section ), 4ule '16 of the 4ules of Court which specifically pro0ides that no
search of a house, room or any other premise shall be made except in the presence of the lawful occupant thereof or
any member of his family or in the absence of the latter, in the presence of two (1) witnesses of sufficient age and
discretion residing in the same locality+ This re/uirement is mandatory to ensure regularity in the execution of the
search warrant+ ?iolation of said rule is in fact punishable under .rticle '28 of the 4e0ised "enal Code+
.s we ha0e ruled in !duardo #uintero 0+ The 5ational ,ureau of ;n0estigation, et al+, a procedure, wherein members
of a raiding party can roam around the raided premises unaccompanied by any witness, as the only witnesses
a0ailable as prescribed by law are made to witness a search conducted by the other members of the raiding party in
another part of the house, is 0iolati0e of both the spirit and letter of the law+
That the raiding party summoned two barangay $agawads to witness the search at the second floor is of no moment+
The 4ules of Court clearly and explicitly establishes a hierarchy among the witnesses in whose presence the search of
the premises must be conducted+ Thus, Section *, 4ule '16 pro0ides that the search should be witnessed by Ctwo
witnesses of sufficient age and discretion residing in the same localityC only in the absence of either of the lawful
occupant of the premises or any member of his family+ Thus, the search of appellantGs residence clearly should ha0e
been witnessed by his son 9ac$ =o who was present at the time+ The police officers were without discretion to
substitute their choice of witnesses for those prescribed by the law+
+ + +
The search conducted by the police officers of appellantGs residence is essentially no different from that in 4eo1le v.
&el Rosario where this Court obser0ed:
He thus entertain serious doubts that the shabu contained in a small canister was actually seiBed or confiscated at the
residence of the accused3appellant+ ;n conse/uence, the manner the police officers conducted the subse/uent and
much delayed search is highly irregular+ Dpon barging into the residence of the accused3appellant, the police officers
found him lying down and they immediately arrested and detained him in the li0ing room while they searched the
other parts of the house+ .lthough they fetched two persons to witness the search, the witnesses were called in only
after the policeman had already entered accused3appellantGs residence (""+ 11312, tsn, -ecember '', '(('), and
therefore, the policemen had more ample time to plant the shabu+ Corollary to the Constitutional precept that, in all
criminal prosecutions, the accused shall be presumed innocent until the contrary is pro0ed (Section '7K1L, .rticle ;;;,
Constitution of the 4epublic of the "hilippines) is the rule that in order to con0ict an accused the circumstances of the
case must exclude all and each and e0ery hypothesis consistent with his innocence (4eo1le v. Tan#ho#o! /6 4hil )6*
819)69: 4eo1le v. Constante! 12 ,CR% 6.*8196)9: 4eo1le v. ;ara! 1)) ,CR% .16819+69)+ The facts of the case do not
rule out the hypothesis that accused3appellant is innocent+
He also find that the raiding team failed to comply with the procedures on search and seiBures pro0ided under
Sections '' and '1, 4ule '16 of the 4ules on Criminal "rocedure, to wit:
S!C+ ''+ Re#ei1t for the 1ro1ert seize2+ 3 The officer seiBing the property under the warrant must gi0e a detailed
receipt for the same to the lawful occupant of the premises in whose presence the search and seiBure were made, or
in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion
residing in the same locality, lea0e a receipt in the place in which he found the seiBed property+
S!C+ '1+ &eliver of 1ro1ert an2 inventor thereof to the #ourt+ 3 The officer must forthwith deli0er the property
seiBed to the @udge who issued the warrant, together with a true in0entory thereof duly 0erified under oath+
Clearly, the detailed receipt of the in0entory must be gi0en to the lawful occupant+ ;n this case, howe0er, "<2 "etallar
admitted that the in0entory receipt was gi0en to thebaranga tano2
7'
despite the presence of the appellant and her
grandmother which is a 0iolation of the rule+
Ai$ewise, the police officers failed to deli0er the seiBed items to the court which issued the search warrant+ ;t was
commanded in the search warrant that the seiBed articles be brought to the court which issued it to be dealt with as
the law directs+ Dnder the rule, the seiBed property must be deli0ered by the officer to the @udge who issued the
warrant+ ;t must be accompanied with a true in0entory thereof duly 0erified+ The police officers all testified that the
confiscated shabu was brought to the "5" Crime Aaboratory for examination+ Faced with the same circumstance, we
held in 4eo1le v. 7es'un2o:
71
<n the issue of non3deli0ery of the seiBed mari@uana to the court, the trial court held that it ta$es @udicial notice of the
usual practice of the San "ablo City police force of retaining possession of confiscated specimens suspected of being
mari@uana by immediately forwarding them to the 5,; or to an 5,; accredited physician for preliminary examination
andor laboratory examination before filing a case with the city prosecutorGs office+ The mere tolerance by the trial
court of such a practice does not ma$e it right+ Clearly, such practice 0iolates the mandatory re/uirements of the law
and defeats the 0ery purpose for which they were enacted+ Speculations as to the probability of tampering with the
e0idence cannot then be a0oided+
The trial @udge cites the case of Yee Sue %oy, et al 0+ >ariano .lmeda, et al+ ()8 "hil '7') to @ustify the retention by
the police and the 5,; of the custody of the allegedly confiscated specimens+ Hhile in said decision, this court
recogniBed the fact that the ob@ects seiBed were retained by the agents of the .nti3Dsury ,oard, instead of being
turned o0er to the 9ustice of the "eace of Sagay, yet the Court also held that it was Cfor the reason that the custody of
said agents is the custody of the issuing officer or court, the retention ha0ing been appro0ed by the latter+C Thus,
appro0al by the court which issued the search warrant is necessary for the retention of the property seiBed by the
police officersF and only then will their custody be considered custody of the court+ .bsent such appro0al, the police
officers ha0e no authority to retain possession of the mari@uana and more so, to deli0er the property to another
agency, li$e the 5,;+
72
>oreo0er, the in0entory receipt was not certified under oath by any of the members of the raiding team as re/uired
by the rule but was signed only by appellant and her brother+
The trial court erred in relying on the receipt of confiscated articles to establish that the raiding team had actually
seiBed the listed items therein+ First, it is highly irregular that the in0entory receipt was dated 9uly 17, 1888 when the
actual raid was conducted on 9uly 2', 1888+ He find the explanation unacceptable gi0en that the receipt was already
prepared earlier than the search+ Such discrepancy affects the integrity of the in0entory receipt+ Second, appellant
signed the receipt without the assistance of counsel+ ;t was established that at the time she signed the receipt, she
was already under custodial in0estigation+ The testimony of "<2 "etallar is re0ealing:
# Hhen you saw the articles seiBed you were of the impression that they were illegalIchanrobles0irtualawlibrary
. Yes, sir+
# ,ecause of that impression you held !den del Castillo in custody of the lawIchanrobles0irtualawlibrary
. Yes, sir+
# You handcuffed !den del Castillo immediatelyIchanrobles0irtualawlibrary
. 5o, we do (sic) not handcuffed (sic) !den del Castillo+
# .lthough you do (sic) not handcuffed (sic) !den del Castillo, the accused but 0irtually she was already held in
custody of the lawIchanrobles0irtualawlibrary
. He effected the arrest+
# So you begun listing down the articles which is supposedly seiBedIchanrobles0irtualawlibrary
. Dpon the deli0ery of the seiBed articles from the searching parties ; began listing+
# You listed the articles in that prepared form, correctIchanrobles0irtualawlibrary
. Yes, sir+
77
# ;n your @oint affida0it, you stated in paragraph ) CThat we informed her Constitutional 4ight pro0ided under the
'(*) "hil+ ConstitutionIC
. Yes, sir+
# You informed her of her right under the Constitution because you wanted her to claim ownership of the seiBed
articlesIchanrobles0irtualawlibrary
. He @ust informed her about her constitutional right+
# So that after informing her of her constitutional right she signed this receipt or in0entory of seiBed articles, correctI
chanrobles0irtualawlibrary
. Yes, sir+
# So you as$ed her by interrogation or /uestion whether or not you will concur to the entries listed in this in0entoryI
chanrobles0irtualawlibrary
. Yes, sir+
# You also as$ed her that the search was conducted in a 0ery orderly mannerIchanrobles0irtualawlibrary
. Yes, sir+
# You also as$ed her that nothing was destroyed or lost inside the houseIchanrobles0irtualawlibrary
. Yes, sir+
# That you also as$ed her that the members of the raiding team did not in any manner sub@ected (sic) them to
unreasonable treatmentIchanrobles0irtualawlibrary
. Yes, sir+
# .nd that they were not exposed to embarrassmentIchanrobles0irtualawlibrary
. Yes, sir+
# Since you shoot (sic) se0eral /uestions and informing her of the constitution(al) right(s) under the '(*)
Constitution did you tell her that you ha0e the right to be assisted by counselIchanrobles0irtualawlibrary
. ; told her that+
+ + +
C<D4T:
# .fter you had told the accused that she is entitled to ha0e counsel now what did the accused say, if anyIchanrobles0irtualawlibrary
. She told me that she would get a lawyer+
.TTY+ 4;?!4.A:
# ;n effect, did she get a lawyerIchanrobles0irtualawlibrary
. 5ot immediately+
+ + +
# Thereafter was she able to get a lawyerIchanrobles0irtualawlibrary
. Hhen we arri0ed at the camp her sister told us that she had already hired a lawyer+
# ;n effect, did that lawyer appear in the campIchanrobles0irtualawlibrary
. ; ne0er saw+
# So accused would (sic) sign (sic) that instrument without the assistance of counselIchanrobles0irtualawlibrary
. Yes, sir+
7:
Hhile "<2 "etallar testified that appellant was read her constitutional right, it was not clearly shown that she was
informed of her right not to sign the receipt and that it can be used as an e0idence against her+ ;f appellant was
indeed informed of her constitutional right, it is unusual for her to sign the receipt ac$nowledging ownership of the
seiBed items without the assistance of counsel considering that she wanted to get a lawyer+ ;n 4eo1le v. 7o,
76
we
found the in0entory receipt signed by appellant inadmissible for being 0iolati0e of her custodial right to remain silent,
thus:
.fter the in0entory had been prepared, "<1 .bulencia presented it to appellant for his signature without any showing
that appellant was informed of his right not to sign such receipt and to the assistance of counsel+ 5either was he
warned that the same could be used as e0idence against him+ Faced with similar circumstances, this Court in "eople
0+ =esmundo stated:
;t is true that the police were able to get an admission from the accused3appellant that mari@uana was found in her
possession but said admission embodied in a document entitled C".=".".TD5.YC pre0iously prepared by the police,
is inadmissible in e0idence against the accused3appellant for ha0ing been obtained in 0iolation of her rights as a
person under custodial in0estigation for the commission of an offense+ The records show that the accused3appellant
was not informed of her right not to sign the documentF neither was she informed of her right to the assistance of
counsel and the fact that the document may be used as e0idence against her+
;n "eople 0+ "olicarpio, this Court held that such practice of inducing suspects to sign receipts for property allegedly
confiscated from their possession is unusual and 0iolati0e of the constitutional right to remain silent, 0iB:
Hhat the records show is that appellant was informed of his constitutional right to be silent and that he may refuse to
gi0e a statement which may be used against him, that is why he refused to gi0e a written statement unless it is made
in the presence of his lawyer as shown by the paper he signed to this effect+ &owe0er, he was made to ac$nowledge
that the six (6) small plastic bags of dried mari@uana lea0es were confiscated from him by signing a receipt and to sign
a receipt for the "18+88 bill as purchase price of the dried mari@uana lea0es he sold to "at+ >angila+
<b0iously the appellant was the 0ictim of a cle0er ruse to ma$e him sign these alleged receipts which in effect are
extra3@udicial confessions of the commission of the offense+ ;ndeed it is unusual for appellant to be made to sign
receipts for what were ta$en from him+ ;t is the police officers who confiscated the same who should ha0e signed such
receipts+ 5o doubt this is a 0iolation of the constitutional right of the appellant to remain silent whereby he was made
to admit the commission of the offense without informing him of his right+ Such a confession obtained in 0iolation of
the Constitution is inadmissible in e0idence+
The ;n0entory 4eceipt signed by appellant is thus not only inadmissible for being 0iolati0e of appellantGs custodial right
to remain silentF it is also an indicium of the irregularity in the manner by which the raiding team conducted the
search of appellantGs residence+
.ssuming arguen2o that appellant did wai0e her right to counsel, such wai0er must be 0oluntary, $nowing and
intelligent+ To insure that a wai0er is 0oluntary and intelligent, the Constitution
7)
re/uires that for the right to counsel
to be wai0ed, the wai0er must be in writing and in the presence of the counsel of the accused+
7*
There is no such
written wai0er in this case, much less was any wai0er made in the presence of the counsel since there was no counsel
at the time appellant signed the receipt+ Clearly, appellant affixed her signature in the in0entory receipt without the
assistance of counsel which is a 0iolation of her right under the Constitution+
;n all criminal cases, it is appellantGs constitutional right to be presumed innocent until the contrary is pro0ed beyond
reasonable doubt+ Thus in 4eo1le v. &el Norte,
7(
we said:
He detest drug addiction in our society+ &owe0er, we ha0e the duty to protect appellant where the e0idence
presented shows Cinsufficient factual nexusC of her participation in the commission of the offense charged+ ;n "eople
0+ Aaxa, we held:
The go0ernmentGs dri0e against illegal drugs deser0es e0erybodyGs support+ ,ut it cannot be pursued by ignoble
means which are 0iolati0e of constitutional rights+ ;t is precisely when the go0ernmentGs purposes are beneficent that
we should be most on our guard to protect these rights+ .s 9ustice ,randeis warned long ago, Cthe greatest dangers
to liberty lur$ in the insidious encroachment by men of Beal, well meaning without understanding+C
@HERE7ORE, the decision appealed from is REVER#ED and #E A#IDE on the ground that the prosecution failed to
establish the guilt of appellant !den del Castillo+ She is hereby A!<6IED of the crime charged against her and her
immediate release from confinement is hereby ordered unless she is lawfully held in custody for another cause+
The -irector of the ,ureau of Corrections is ordered to forthwith implement this decision and to inform this Court,
within ten ('8) days from receipt hereof, of the date appellant was actually released from confinement+
The shabu and other shabu paraphernalias seiBed during the search are forfeited in fa0or of the State+
[G.R. No. 139301. September 29, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs. HUNG !HEN HU "#$ %OG&
LEE, appellants.
' E ( I S I O N
This is an appeal from the Decision
[1]
of the Regional Trial Court (RTC) of Paraaque
City, etro anila, !ranch "#$, con%icting the appellants of %iolation of &ection 1', (rticle
))) of Repu*lic (ct +o, '-"#, as amen.e.,
T)e ("*e +or t)e Pro*e,-t.o#
Police operati%es of the Pu*lic (ssistance an. Reaction (gainst Crime (P(R(C)
un.er the Department of )nterior an. /ocal 0o%ernment recei%e. 1or. from their
confi.ential informant that Peter Chan an. 2enry /ao,
["]
an. appellants 3ogy /ee an.
2uang 4hen 2ua 1ere engage. in illegal .rug traffic5ing, The policemen also learne.
that appellant /ee 1as han.ling the payments an. accounting of the procee.s of the
illegal .rug traffic5ing acti%ities of /ao an. Chan,
[6]
P76 !elliar.o (nciro, 3r, an. other
police operati%es con.ucte. sur%eillance operations an. 1ere a*le to %erify that /ao an.
appellant /ee 1ere li%ing together as hus*an. an. 1ife, They once spotte. Chan, /ao,
the appellants an. t1o others, in a seafoo. restaurant in !oco*o &treet, 8rmita, anila,
late in the e%ening, 7n another occasion, the policemen sa1 Chan, /ao, an. the
appellants, at the Celicious Restaurant along R, &anche9 &treet, 8rmita, anila, at a*out
:;6< p,m, They 1ere spotte. the thir. time at the i.to1n 2otel at a*out =;<< p,m, to
:;<< p,m,
[-]
The police operati%es also %erifie. that Chan an. /ao resi.e. at Room +os,
1"-# an. 1"-=, Citylan. Con.ominium, De la Rosa &treet, a5ati City, an. in a t1o>
storey con.ominium unit at +o, 1$ (tlantic Dri%e, Pacific 0ran. ?illa, &to, +io,
Paraaque, etro anila,
[#]
7n 7cto*er "#, 1$$', &P7" Cesar +, Teneros of the P(R(C secure. &earch @arrant
+o, $'>:<1 for %iolation of Presi.ential Decree (P,D,) +o, 1:'' (illegal possession of
firearms an. eAplosi%es) an. &earch @arrant +o, $'>:<", for %iolation of &ections 1", 1-
an. 1' of Rep, (ct +o, '-"#, as amen.e., from 3u.ge @illiam , !ayhon, 8Aecuti%e
3u.ge of the RTC of anila,
[']
&enior Police )nspector /ucio argallo super%ise. the
enforcement of &earch @arrant +o, $'>:<1 at the Citylan. Con.ominium at a*out 11;<<
p,m, on 7cto*er "$, 1$$', @ith him 1ere P76 (nciro, 3r,, P76 @ilhelm Castillo, &P76
Roger Berias an. se%en other policemen of the P(R(C, 1ho 1ere all in uniform, as 1ell
as a Cantonese interpreter *y the name of Chuang, @hile no persons 1ere foun. insi.e,
the policemen foun. t1o 5ilos of methamphetamine hy.rochlori.e, popularly 5no1n
as shabu, paraphernalia for its pro.uction, an. machines an. tools apparently use. for
the pro.uction of fa5e cre.it car.s,
[=]
Thereafter, the police operati%es recei%e. information that /ao an. Chan 1oul. *e
.eli%ering shabu at the Burama /aser Carao5e Restaurant at the corner of Dasmarias
an. ancha &treets, anila, The policemen rushe. to the area on *oar. their %ehicles, )t
1as ";<< a,m, of 7cto*er "', 1$$', The policemen sa1 Chan an. /ao on *oar. the
latterDs 2on.a Ci%ic car, (s the t1o men alighte., one of the men approache. them an.
intro.uce. himself, *ut Chan an. /ao fire. shots, Thus, a shoot>out ensue. *et1een the
mem*ers of the rai.ing team an. the t1o suspects, Chan an. /ao 1ere shot to .eath
.uring the encounter, The policemen foun. t1o plastic *ags, each containing one 5ilo
of shabu, in /aoDs car,
The policemen then procee.e. to +o, 1$ (tlantic Dri%e, Pacific 0ran. ?illa, to enforce
&earch @arrant +o, $'>:<", @hen the policemen arri%e. at the place, they coor.inate.
1ith (ntonio Pangan, the officer in charge of security in the *uil.ing,
[:]
The men foun. that
the Con.ominium Enit +o, 1$ 1as lease. to /ao un.er the name 2enry Cao Tsung, The
policemen, Pangan an. t1o security guar.s of the Pacific 0ran. ?illa procee.e. to the
con.ominium unit, (nciro, 3r, 5noc5e. repeate.ly on the front .oor, *ut no one
respon.e., Pangan, li5e1ise, 5noc5e. on the .oor,
[$]
(ppellant /ee peepe. through the
1in.o1 *esi.e the front .oor,
[1<]
The men intro.uce. themsel%es as policemen,
[11]
*ut the
appellant coul. not un.erstan. them as she coul. not spea5 8nglish,
[1"]
The policemen
allo1e. Pangan to communicate 1ith appellant /ee *y sign language an. pointe. their
uniforms to her to sho1 that they 1ere policemen, The appellant then opene. the .oor
an. allo1e. the policemen, Pangan an. the security guar.s into the con.ominium unit,
[16]
The policemen *rought appellant /ee to the secon. floor 1here there 1ere three
*e.rooms F a masterDs *e.room an. t1o other rooms, @hen as5e. 1here she an. /ao
slept, appellant /ee pointe. to the masterDs *e.room,
[1-]
(nciro, 3r,, argallo an. P76
@ilhelm Castillo then searche. the masterDs *e.room, 1hile Berias an. Pangan 1ent to
the other *e.room 1here appellant 4hen 2ua 1as sleeping,
[1#]
Berias a1a5ene. appellant
4hen 2ua an. i.entifie. himself as a policeman, (ppellant 4hen 2ua 1as surprise.,
[1']
(nciro, 3r, sa1 a small ca*inet insi.e the masterDs *e.room a*out siA feet high, 2e
stoo. on a chair, opene. the ca*inet an. foun. t1o transparent plastic *ags each
containing one 5ilo ofshabu,
[1=]
a fee.ing *ottle, a plastic canister
[1:]
an. assorte.
paraphernalia,
[1$]
)nsi.e the .ra1er of the *e.Ds hea.*oar., (nciro, 3r, also foun. assorte.
.ocuments, pictures, *an5 pass*oo5s issue. *y the (llie. !an5ing Corporation, cre.it
car.s, passports an. i.entification car.s of /ao an. /ee,
["<]
(nciro, 3r, as5e. appellant /ee
1ho 1as the o1ner of the crystalline su*stance, *ut the latter .i. not respon. *ecause
she .i. not 5no1 8nglish,
["1]
(nciro, 3r, as5e. argallo for instructions on 1hat to .o 1ith
the things he ha. foun., an. the latter tol. him to 5eep the same for future reference,
[""]
an. as e%i.ence against any other suspect for illegal .rug transactions,
["6]
(nciro, 3r,,
Pangan an. argallo later sho1e. the sei9e. articles to the other mem*ers of the team,
["-]
(nciro, 3r, tol. appellant /ee to *ring some of her clothes *ecause they 1ere *ringing
her to the P(R(C hea.quarters, (ppellant /ee .i. as she 1as tol. an. too5 some
clothes from the ca*inet in the masterDs *e.room 1here (nciro, 3r, ha. earlier foun.
the shabu,
["#]
The policemen *rought the appellants to the P(R(C hea.quarters, The follo1ing
articles 1ere foun. an. confiscate. *y the policemen in the con.ominium unit;
a. TWO (2) Big Transparent Plastic Bags containing about one (1) Kilo each of white crystalline
granules later tested to be etha!pheta!ine "ydrochloride or Shabu# a regulated drug$
b. O%& (1) Transparent Plastic Baby 'eeding Bottle containing an undeter!ined (uantity of
suspected Shabu$
c. O%& (1) )!all Plastic *annister also containing undeter!ined a!ount of suspected Shabu +.
d. ,ssorted Pieces of Shabu Paraphernalia consisting of -!pro.ised Tooters used for
sniffing shabu# -!pro.ised Burners used for burning Shabu# alu!inu! foils# etc.$
["']
(nciro, 3r, place. the articles he foun. in the ca*inet insi.e a *oA,
["=]
The appellants
1ere then *rought to the P(R(C hea.quarters 1here they 1ere .etaine., Pangan signe.
a Certification
[":]
that the search con.ucte. *y the policemen ha. *een or.erly an.
peaceful, (nciro, 3r, affiAe. his initials on the transparent plastic *ags an. their contents,
the transparent *a*y fee.ing *ottle an. the plastic cannister an. their contents, 7n
7cto*er "', 1$$', he an. Berias
["$]
*rought the sei9e. items to the P+P Crime /a*oratory
for la*oratory eAamination
[6<]
along 1ith the letter>request
[61]
thereon,
7n the same .ay, Borensic Chemist 7fficer )si.ro /, Cario signe. Chemistry Report
+o, D>1"-6>$' 1hich containe. his fin.ings on the la*oratory eAamination of the items
1hich 1ere mar5e. as 8Ahi*its G(H to G(>-,H viz;
)P&*-&% )/B-TT&01
&2h. 3,4 5 One (1) 3!ust de *artier Paris4 carton containing the following1
&2h. 3,614 5 One (1) heat6sealed transparent plastic bag containing 1#777.87 gra!s of white
crystalline substance.
&2h. 3,624 5 One (1) heat6sealed transparent plastic bag containing 99:.17 gra!s of white
crystalline substance.
&2h. 3,6;4 5 One (1) transparent plastic 3Babyflo %urser4 feeding bottle with pin< co.er
containing 1:.=2 gra!s of white crystalline substance.
&2h. 3,684 5 One (1) transparent plastic container with white co.er containing ;.2: gra!s of white
crystalline substance.
%OT&1 The abo.e6stated speci!en were allegedly ta<en fro! the residence of the abo.e6na!ed
sub>ects. 222
P/?PO)& O' @,BO?,TO?A &B,-%,T-O%1
To deter!ine the presence of prohibited andCor regulated drug.
'-%0-%D)1
Eualitati.e e2a!ination conducted on the abo.e6stated speci!ens# &2hs. 3,614 through 3,684
ga.e PO)-T-F& result to the test for etha!pheta!ine hydrochloride# a regulated drug. 222
[6"]
The police officers eAecute. an affi.a%it of arrest,
[66]
Pangan an. the t1o security
guar.s signe. a certification stating that nothing 1as .estroye. in the con.ominium unit
an. that the search 1as or.erly an. peaceful,
[6-]
The policemen also accomplishe. an
in%entory of the articles sei9e. .uring the search,
[6#]
The appellants 1ere charge. of %iolation of &ection 1', Rep, (ct +o, '-"#, as
amen.e., in an )nformation file. in the RTC of Paraaque, etro anila, the accusatory
portion of 1hich rea.s;
That on or about the 2G
th
day of October 199G# in the unicipality of ParaHa(ue# etro anila#
Philippines# and within the >urisdiction of this "onorable *ourt# the abo.e6na!ed accused#
conspiring and confederating together and both of the! !utually helping and aiding one another#
not being lawfully authoriIed to possess or otherwise use any regulated drug and without the
corresponding license or prescription# did then and there willfully# unlawfully and feloniously ha.e#
in their possession and under their control and custody# the following to wit1
,. One (1) heat6sealed transparent plastic bag containing 1#777.87 gra!s of white crystalline
substance$
B. One (1) heat6sealed transparent plastic bag containing 99:.1 gra!s of white crystalline
substance$
*. One (1) transparent plastic 3Babyflo %urser4 feeding bottle with pin< co.er containing 1:.=2
gra!s of white crystalline substance$
0. One (1) transparent plastic container with white co.er containing ;.2: gra!s of white crystalline
substance
which when e2a!ined were found to be positi.e for etha!pheta!ine "ydrochloride (Shabu)# a
regulated drug.
*O%T?,?A TO @,W.
[6']
!oth appellants, assiste. *y counsel, 1ere .uly arraigne. on +o%em*er "$, 1$$", an.
plea.e. not guilty to the charge,
T)e ("*e +or t)e ppe//"#t*
(ppellant 3ogy /ee .enie. the charge, &he testifie. that she 1as a resi.ent of
C1antong, China, a college gra.uate 1ho coul. not spea5 nor un.erstan. 8nglish, &he
1as once employe. in a real estate firm, 7ne of her co>employees 1as 2uang 4hen 2ua,
[6=]
&he met 2enry /ao in China sometime in 1$$#,
[6:]
an. he *rought her to !elgium that
same year, /ao also helpe. her procure a !elguim passport, for he eAplaine. that if she
only ha. a Chinese passport, it 1oul. *e .ifficult to secure %isas from countries she
1ante. to go to an. %isitI 1hereas many countries .i. not require a !elgian passport
hol.er to secure %isas *efore allo1ing entry therein, )n the process, he an. /ao fell in lo%e
an. *ecame lo%ers,
Epon /aoDs in%itation, appellant /ee %isite. the Philippines as a tourist for the first time
in (pril 1$$', /ao met her at the airport, an. she 1as, thereafter, *rought to a hotel in
anila 1here she staye. for less than a month,
[6$]
&he returne. to the Philippines a secon.
time an. 1as again *illete. in a hotel in anila, (ll her eApenses 1ere shoul.ere. *y
/ao, 1ho 1as engage. in the garlic *usiness,
[-<]
(s far as she 5ne1, /ao 1as not engage.
in any other *usiness,
[-1]
)n 3une 1$$', she in%ite. her frien., appellant 2uang 4hen 2ua to
%isit the Philippines to enJoy the tourist spots,
[-"]
They 1ere then in China,
)n the e%ening of 7cto*er 1, 1$$', appellant /ee returne. to the Philippines on a
tourist %isa, &he 1as fetche. *y /ao, an. she 1as *rought to his con.ominium unit at +o,
1$, (tlantic Dri%e, Pacific 0ran. ?illa, &to, +io, Paraaque, &he ha. *een resi.ing there
since then, &he an. /ao use. to go to the shopping malls
[-6]
an. she e%en sa1 Chan once
1hen he cleane. his +issan car in /aoDs garage,
7n 7cto*er "", 1$$', appellant 4hen 2ua arri%e. from China at the +()( an. 1as
met *y /ao at the airport, 2e trie. to chec5 in at the Diamon. 2otel *ut /ee tol. him that
he coul. stay in the con.ominium unit, 4hen 2ua 1as *rought to the ?illa 1here he ha.
*een staying since then, The appellants ha. ma.e plans to %isit Ce*u,
(t a*out ';<< a,m, on 7cto*er "', 1$$', appellant /ee 1as sleeping in the masterDs
*e.room at the con.ominium unit, &he ha. close. all the 1in.o1s *ecause she ha.
turne. the air con.itioning unit on, 4hen 2ua 1as sleeping in the other *e.room in the
secon. floor *esi.e the masterDs *e.room, /aoDs 2on.a Ci%ic car an. ChanDs +issan car
1ere in the garage *esi.e the con.ominium unit, omentarily, /ee hear. someone
5noc5ing on the *e.room .oor, @hen she opene. it, three (6) policemen *arge. into the
*e.room an. at the room 1here appellant 4hen 2ua 1as sleeping, (nciro, 3r, 1as not
among the men, /ee .i. not hear the policemen 5noc5 at the main .oor *efore they
entere.,
[--]
The policemen 1ere accompanie. *y Chuang, a Cantonese interpreter, 1ho
tol. her that the policemen 1ere going to search the house,
[-#]
(ppellant /ee sa1 a
policeman hol.ing t1o papers, *ut no search 1arrant 1as sho1n to her,
[-']
&he 1as so
frightene.,
The policemen place. t1o plastic *ags on the *e. *efore they searche. the masterDs
*e.room, (ppellant /ee 1ent to the room of appellant 4hen 2ua an. 1hen she returne.
to the masterDs *e.room, she sa1 shabu on the *e.,
[-=]
The policemen too5 her ring, 1atch
an. the P'<<,<<< o1ne. *y /ao 1hich ha. earlier *een place. in the ca*inet, her papers
an. .ocuments, an. those of /aoDs as 1ell, &he ha. ne%er seen any shabu in the room
*efore the inci.ent, Thereafter, she an. appellant 4hen 2ua 1ere *rought to the P(R(C
hea.quarters 1here they 1ere .etaine., Chuang, the cantonese interpreter, informe. her
that shabu ha. *een foun. in the con.ominium unit an. that the policemen 1ere
.eman.ing P#,<<<,<<< for her release, &he 1as also tol. that if she .i. not pay the
amount, she 1oul. *e charge. 1ith .rug traffic5ing, an. that the lea.er of the group 1ho
arreste. her 1oul. *e promote., 2o1e%er, she tol. Chuang that she ha. no money,
&ince she coul. not pay the amount, she 1as *oar.e. on a P(R(C o1ner>type Jeep an.
returne. to the con.ominium unit 1here the policemen too5 all the househol. appliances,
such as the tele%ision, compact .iscs, 1ashing machine, inclu.ing laun.ry .etergent,
7nly the sofa an. the *e. 1ere not ta5en, (*out ten (1<) .ays later, the appellants
secure. the ser%ices of counsel,
(ntonio Pangan testifie. that he an. the policemen 5noc5e. on the .oor to the
con.ominium unit *ut that no one respon.e., 2e shoute., G&ir 2enry,H referring to /ao,
*ut there 1as no response from insi.e the con.ominium, (fter a*out three (6) to fi%e (#)
minutes, a policeman 5ic5e. the .oor open an. they entere. the house, They 1ent to the
secon. floor an. sa1 the appellants sleeping,
Pangan testifie. that he .i. not see any shabu that 1as sei9e. *y the policemen, 2e
learne. that shabu ha. *een foun. an. ta5en from the con.ominium unit only 1hen he
sa1 someone hol.ing up the su*stance on tele%ision .uring the .aily ne1s program T?
Patrol,
[-:]
(ppellant 4hen 2ua also .enie. the charge, 2e corro*orate. the testimony of
appellant /ee that upon her in%itation, he arri%e. in the Philippines on a tourist %isa on
7cto*er "", 1$$', 2e claime. that he .i. not see (nciro, 3r, in the con.ominium unit
1hen policemen arri%e. an. searche. the house, 2e testifie. that asi.e from the P(R(C
policemen, he 1as also in%estigate. *y policemen from Tai1an,
(fter trial, the court ren.ere. Ju.gment on 3anuary 1<, 1$$$, con%icting *oth
appellants of the crime charge., The .ecretal portion of the .ecision rea.s;
W"&?&'O?&# P?&-)&) *O%)-0&?&0# finding accused Jogy @ee and "uang Khen "ua
D/-@TA beyond reasonable doubt for .iolation of )ec. 1G# ,rt. ---# ?, G82=# as a!ended by ?,
LG=9# and considering the absence of any aggra.ating circu!stances# this *ourt hereby sentences
both accused to suffer the penalty of Reclusion Perpetua and to pay a fine of P=77#777.77 each.
The properties seiIed in accordance with the search warrants issued relati.e to this case are hereby
ordered confiscated in fa.or of the go.ern!ent and the *ler< of *ourt of this *ourt is directed to
turn o.er to the 0angerous 0rugs Board# the drugs and paraphernalia sub>ect hereof for proper
disposition.
The *ler< of *ourt is also directed to prepare the itti!us for the i!!ediate transfer of both
accused Jogy @ee and "uang Khen "ua fro! the ParaHa(ue *ity Jail to the Bureau of *orreccions
(sic) in untinlupa *ity.
)O O?0&?&0.
[-$]
T)e Pre*e#t ppe"/
7n appeal to this Court, appellant 4hen 2ua, asserts that;
'irst. The e.idence for the prosecution# as a whole# is so far as self6contradictory# inherently
i!probable and palpably false to be accepted as a faithful reflection of the true facts of the case$
)econd. ,ppellant "uang Khen "uaMs con.iction was based !erely on the trial courtMs conclusion
that he 3is not an epito!e of first class tourist and that he appeared nonchalant throughout the
proceedings$4
Third. -n con.icting said appellant# the court below co!pletely disregarded the glaring facts and
ad!issions of the prosecutionMs principal witnesses that no regulated drug was e.er found in his
possession$
'ourth. The trial court# li<ewise# ignored the fact that the appellantMs arrest was illegal and in
.iolation of his constitutional and basic rights against arrest without probable cause as deter!ined
by a Judge and that his arraign!ent did not constitute a wai.er of such right$
'ifth. The trial court failed to consider the fact that the presu!ption of regularity of perfor!ance of
the police officers who too< part in the search had been o.erco!e by prosecutionNs own e.idence#
thereby wrongly gi.ing such presu!ption substance o.er and abo.e the constitutional presu!ption
of innocence of the appellant.
[#<]
Bor her part, appellant /ee conten.s that;
1,<1 T28 (//808D T@7 C)/7& 7B SHABU B7E+D )+&)D8 7+8 7B T28 R77& )+ T28
T7@+27E&8 R8+T8D !K 28+RK /(E @8R8 8R8/K P/(+T8D !K P(R(C
7P8R(T)?8&I
1,<" T28 )P/88+T(T)7+ 7B T28 &8(RC2 @(RR(+T @(& 2)02/K )RR80E/(R,
DE!)7E& (+D E+R8(&7+(!/8 (& T28 &8(RC2 @(RR(+T D)D +7T C7+T()+ (+K
P(RT)CE/(R D8&CR)PT)7+ 7B T28 R77 T7 !8 &8(RC28D, +7R @(& T28R8 (+K
)+T8RPR8T8R T7 (&&)&T (+D 0E)D8 370K /88, @27 +8)T28R C+8@ +7R
E+D8R&T(+D T28 8+0/)&2 /(+0E(08, DER)+0 T28 &8(RC2 (+D 8?8+ DER)+0
T28 TR)(/I
", T28 /7@8R C7ERT 8RR8D )+ +7T (CLE)TT)+0 (CCE&8D 370K /88 EP7+ T28
0R7E+D T2(T 28R 0E)/T @(& +7T 8&T(!/)&28D !K PR77B !8K7+D R8(&7+(!/8
D7E!T,
[#1]
Bor its part, the 7ffice of the &olicitor 0eneral (7&0) posits that appellant 4hen 2ua
shoul. *e acquitte. on the groun. of reasona*le .ou*t, *ut that the con%iction of appellant
/ee shoul. *e affirme.,
T)e (o-rt0* R-/.#1
@e shall .el%e into an. resol%e the assigne. errors of the appellants 2uang 4hen 2ua
an. 3ogy /ee sequentially,
On Appellant Zhen Hua
The 7&0 conten.s that the prosecution faile. to muster the requisite quantum of
e%i.ence to pro%e appellant 4hen 2uaDs guilt *eyon. reasona*le .ou*t for the crime
charge., thus;
"uang Khen "ua denies ha.ing anything to do with the bags of 3shabu4 found in the townhouse
unit of "enry @au. "e clai!s that he arri.ed in the Philippines as a tourist on October 22# 199G#
upon the in.itation of Jogy @ee. ,llegedly# at the ti!e of his arrest# he had been in the Philippines
for barely four days. "e clai!s that he was >ust te!porarily billeted as a guest at the townhouse
where Jogy @ee was staying. ,nd that he had no control whatsoe.er o.er said townhouse. "e puts
e!phasis on the fact that the search of his roo! turned out to be 3negati.e4 and that the raiding
tea! failed to seiIe or confiscate any prohibited or regulated drug in his person or possession. "e#
therefore# prays for his ac(uittal.
The People sub!its that "uang Khen "ua is entitled to ac(uittal. The prosecutionMs e.idence fails
to !eet the (uantu! of e.idence re(uired to o.erco!e the constitutional presu!ption of innocence$
thus# regardless of the supposed wea<ness of his defense# and his innocence !ay be doubted# he is
nonetheless entitled to an ac(uittal (Natividad v. Court of Appeals# 9: )*?, ;;= (19:7)# cited
in People v. Fronda# D.?. %o. 1;7G72# arch 1=# 2777). The constitutional presu!ption of
innocence guaranteed to e.ery indi.idual is of pri!ary i!portance# and the con.iction of the
accused !ust rest not on the wea<ness of the defense but on the strength of the e.idence for the
prosecution.
-n the instant case# as pointed out by appellant "uang Khen "ua# the trial court erred when it did
not gi.e !uch weight to the ad!ission !ade by the prosecution witnesses that no regulated drug
was found in his person. %o regulated drug was also found inside his roo! or in his other
belongings such as suitcases# etc. Thus# he had no actual or constructi.e possession of the
confiscated 3shabu.4
oreo.er# it is not disputed that "uang Khen "ua had only been in the country for barely four (8)
days at the ti!e when he was arrested. The prosecution was unable to show that in these four (8)
days "uang Khen "ua co!!itted acts which showed that he was in cahoots with the drug syndicate
"enry @au and Peter *han. -t was not e.en shown that he was together with "enry @au and Peter
*han on any occasion. ,s for "uang Khen "ua# therefore# there is no direct e.idence of any
culpability. %or is there any circu!stantial e.idence fro! which any culpability !ay be inferred.
[#"]
@e agree 1ith the 7&0, )n a case of recent %intage, this Court, in People vs. Tira,
[#6]
ruminate. an. eApostulate. on the Juri.ical concept of GpossessionH un.er &ection 1',
(rticle ))) of Rep, (ct +o, '-"#, as amen.e., an. the e%i.ence necessary to pro%e the
sai. crime, thus;
The essential ele!ents of the cri!e of possession of regulated drugs are the following1 (a) the
accused is found in possession of a regulated drug$ (b) the person is not authoriIed by law or by
duly constituted authorities$ and# (c) the accused has <nowledge that the said drug is a regulated
drug. This cri!e is mala prohibita# and# as such# cri!inal intent is not an essential ele!ent.
"owe.er# the prosecution !ust pro.e that the accused had the intent to possess (animus posidende)
the drugs. Possession# under the law# includes not only actual possession# but also constructi.e
possession. ,ctual possession e2ists when the drug is in the i!!ediate physical possession or
control of the accused. On the other hand# constructi.e possession e2its when the drug is under the
do!inion and control of the accused or when he has the right to e2ercise do!inion and control o.er
the place where it is found. &2clusi.e possession or control is not necessary. The accused cannot
a.oid con.iction if his right to e2ercise control and do!inion o.er the place where the contraband
is located# is shared with another.
Thus# con.iction need not be predicated upon e2clusi.e possession# and a showing of non6
e2clusi.e possession would not e2onerate the accused. )uch fact of possession !ay be pro.ed by
direct or circu!stantial e.idence and any reasonable inference drawn therefro!. "owe.er# the
prosecution !ust pro.e that the accused had <nowledge of the e2istence and presence of the drug in
the place under his control and do!inion and the character of the drug. )ince <nowledge by the
accused of the e2istence and character of the drugs in the place where he e2ercises do!inion and
control is an internal act# the sa!e !ay be presu!ed fro! the fact that the dangerous drug is in the
house or place o.er which the accused has control or do!inion# or within such pre!ises in the
absence of any satisfactory e2planation.
[#-]
)n this case, the prosecution faile. to pro%e that the appellant, at any time, ha. actual
or constructi%e possession of the regulate. .rug foun. in the masterDs *e.room 1here
appellant /ee 1as sleepingI or that the appellant ha. accesse. the sai. room at any gi%en
timeI or that he ha. 5no1le.ge of the eAistence of shabu in appellant /eeDs *e.room,
(ppellant 4hen 2ua ha. arri%e. in the Philippines upon the in%itation of appellant /ee only
on 7cto*er "", 1$$' or *arely four (-) .ays *efore the arri%al of the policemen an. the
search con.ucte. in the con.ominium unit lease. *y 2enry /ao, 2e 1as a mere %isitor of
appellant /ee, There is no e%i.ence that appellant 4hen 2ua 1as a1are of the allege.
illegal .rug acti%ities an.Mor transactions of 2enry /ao, Peter Chan an. appellant /ee,
The policemen .i. not fin. any regulate. .rug in the room 1here appellant 4hen 2ua 1as
sleeping 1hen they ma.e their search,
The e%i.ence of the prosecution against appellant 4hen 2ua falls short of the requisite
quantum of e%i.ence to pro%e conspiracy *et1een him, appellant /ee an. Chan or /ao,
There is conspiracy 1hen t1o or more persons agree to commit a crime an. .eci.e to
commit it,
[##]
Conspiracy cannot *e presume.,
[#']
Conspiracy must *e pro%e. *eyon.
reasona*le .ou*t li5e the crime su*Ject of the conspiracy,
[#=]
Conspiracy may *e pro%e. *y
.irect e%i.ence or *y proof of the o%ert acts of the accuse., *efore, .uring an. after the
commission of the crime charge. in.icati%e of a common .esign,
[#:]
The *are fact that on t1o or three occasions after the arri%al of appellant 4hen 2ua
from China, an. *efore the search con.ucte. in /aoDs con.ominium unit, appellant 4hen
2ua ha. *een seen 1ith /ao, Chan an. appellant /ee, 2a%ing .inner or lunch at a
restaurant .oes not constitute sufficient proof that he ha. conspire. 1ith them or 1ith any
of them to possess the su*Ject>regulate. .rug, ere association 1ith the principals *y
.irect participation or mere 5no1le.ge of conspiracy, 1ithout more, .oes not suffice,
[#$]

(nciro, 3r, e%en a.mitte. that .uring his sur%eillance, he coul. ha%e mista5en appellant
4hen 2ua for another group of Chinese persons 1ho 1ere also *eing 1atche.,
['<]
(ppellant
4hen 2ua shoul., thus, *e acquitte.,
On Appellant Lee
(ppellant /ee a%ers that certain irregularities 1ere atten.ant in the issuance an.
implementation of &earch @arrant +o, $'>:<", as follo1s; (a) the policemen 1ho
implemente. the search 1arrant faile. in their .uty to sho1 to her the sai. 1arrant, inform
her of their authority an. eAplain their presence in the con.ominium unitI (*) the
policemen gaine. entry into the con.ominium unit *y force 1hile she 1as sleepingI an.
(c) articles an. personal effects o1ne. *y her an. /ao 1ere ta5en an. confiscate. *y the
policemen, although not specifie. in the search 1arrant,
The appellant conclu.es that the articles procure. *y the policemen on the occasion of
the search of the con.ominium unit are ina.missi*le in e%i.ence,
(ppellant /ee, li5e1ise, conten.s that she 1as a %ictim of a frame>up *ecause the
policemen plante. the regulate. .rug on her *e. e%en *efore they searche. the
*e.room, &he 1ent to the room of appellant 4hen 2ua to fin. out if he 1as alrea.y
a1a5e, an. 1hen she returne. to the *e.room, she notice. shabu on her *e., &he a%ers
that the sole testimony of (nciro, 3r,, that he foun. the regulate. .rug in the masterDs
*e.room, is incre.i*le *ecause he 1as not 1ith the policemen 1ho *arge. into the
*e.room, &he notes that e%en Pangan, the careta5er of the ?illa, testifie. that he .i. not
see any illegal .rug confiscate. *y the policemen,
(ccor.ing to appellant /ee, the trial court erre. in con%icting her of the crime charge.,
consi.ering that /ao an. Chan 1ere the suspects i.entifie. in the search 1arrants, not
her, &he a%ers that she ha. no 5no1le.ge of the allege. illegal .rug transactions of her
lo%er /ao, &he conten.s that there 1as no pro*a*le cause for her arrest as her mere
presence in the con.ominium unit .oes not ren.er her lia*le for the shabu foun. in the
masterDs *e.room of the con.ominium unit lease. *y /ao, &he further a%ers that the
testimonies of the 1itnesses for the prosecution are inconsistentI hence, *arren of
pro*ati%e 1eight, The appellant also asserts that she 1as .epri%e. of her right to .ue
process 1hen the trial court con.ucte. a trial 1ithout a Chinese interpreter to assist her,
The 7&0, for its part, a%ers that the police officers are presume. to ha%e performe.
their .uties, !ase. on the testimony of (nciro, 3r,, appellant /ee 1as sho1n the search
1arrant, through the 1in.o1, an. the policemen i.entifie. themsel%es through their
uniforms, The security guar.s of the con.ominium also eAplaine. the search 1arrant to
the appellant, (lthough she 1as, at first, reluctant to open the .oor, appellant /ee later
%oluntarily opene. the .oor an. allo1e. them entry into the unit, There 1as no e%i.ence
of forci*le entry into the unit an. no *rea5age of any .oor, The 7&0 further a%ers that the
appellant ha. *een in the country for quite sometime alrea.y an. coul. not ha%e gotten
aroun. 1ithout un.erstan.ing 8nglish, )n fact, the 7&0 argues that 1hen (nciro, 3r, tol.
the appellant to get some of her clothes since she 1oul. *e *rought to the police
hea.quarters in Lue9on City, she .i. as she 1as tol. an. too5 her clothes from the
ca*inet 1here the shabu 1ere foun. *y the policemen,
The 7&0 further points out that Pangan, the chief of security of the su*.i%ision 1ho
1as a 1itness for appellant /ee, e%en testifie. that the search 1as or.erly, The 7&0
conten.s that there 1as pro*a*le cause for the appellantDs arrest *ecause an informant
ha. tippe. off the arresting officers that the appellant 1as a mem*er of a syn.icate
.ealing 1ith illegal .rugs, an. that she han.le. the accounts of /ao an. Chan, The
appellant 1as not a %ictim of frame>up *ecause she 1as present 1hen the policemen
searche. the masterDs *e.room 1here she 1as sleeping an. 1here she 5ept her clothes,
an. 1itnesse. the .isco%ery of the regulate. .rugs an. paraphernalia,
@e agree 1ith the contention of the appellant that the constitutional proscription
against unreasona*le search an. sei9ure applies to Bilipino citi9ens, as 1ell as to aliens
temporarily resi.ing in the country, The rule against unreasona*le search an. sei9ure
for*i.s e%ery search that is unreasona*leI it protects all those suspecte. or 5no1n to *e
offen.ers, as 1ell as the innocent, The guarantee is as important an. imperati%e as the
guarantee of the other fun.amental rights of the citi9ens,
['1]
(ll o1es the .uty for its
effecti%e enforcement lest there shall *e an impairment of the right for the purpose for
1hich it 1as a.opte.,
['"]
&ection =, Rule 1"' of the Re%ise. Rules of Criminal Proce.ure pro%i.es;
)&*. L. Right to break door or window to effect search. 5 The officer# if refused ad!ittance to the
place of directed search after gi.ing notice of his purpose and authority# !ay brea< open any outer
or inner door or window of a house or any part of a house or anything therein to e2ecute the
warrant or liberate hi!self or any person lawfully aiding hi! when unlawfully detained therein.
The police officers 1ere o*lige. to gi%e the appellant notice, sho1 to her their
authority, an. .eman. that they *e allo1e. entry, They may only *rea5 open any outer or
inner .oor or 1in.o1 of a house to eAecute the search 1arrant if, after such notice an.
.eman., such officers are refuse. entry to the place of .irecte. search, This is 5no1n as
the G5noc5 an. announceH principle 1hich is em*o.ie. in (nglo>(merican /a1, The
metho. of entry of an officer into a .1elling an. the presence or a*sence of such notice
are as important consi.erations in assessing 1hether su*sequent entry to search an.Mor
arrest is constitutionally reasona*le,
['6]
)n Gouled v. The United States,
['-]
it 1as hel. that a
la1ful entry is the in.ispensa*le pre.icate of a reasona*le search, ( search 1oul. %iolate
the Constitution if the entry 1ere illegal, 1hether accomplishe. *y force, *y illegal threat or
mere sho1 of force,
The principle may *e trace. to a statute in 8nglan. 1ay *ac5 in 1"=# pro%i.ing that Gif
a person ta5es the *easts of another an. causes them to *e .ri%en into a castle or
fortress, if the sheriff ma5es a solemn .eman. for the .eli%erance of the *easts, an. if the
person .i. not cause the *easts to *e .eli%ere. incontinent, the 5ing shall cause the sai.
castle or fortress to *e *eaten .o1n 1ithout reco%ery,H Common la1 courts appen.e. an
important qualification;
But before he brea<s it# he ought to signify the cause of his co!ing# and to !a<e re(uest to open
doors +# for the law without a default in the owner abhors the destruction or brea<ing of any house
(which is for the habitation and safety of !an) by which great da!age and incon.enience !ight
ensue to the party# when no default is in hi!$ for perhaps he did not <now of the process# of which#
if he had noticed# it is to be presu!ed that he would obey it+
['#]
!lac5stone simply state. the principle that the sheriff may Justify *rea5ing open .oors
if the possession *e not quietly .eli%ere.,
['']
The principle 1as 1o%en quic5ly into the fa*ric
of early (merican la1 an. in the Bourth (men.ment in the Enite. &tates Be.eral
Constitution, )t is an element of the reasona*leness inquiry un.er the Bourth (men.ment
as hel. in Wilson v. Arkansas,
['=]
0enerally, officers implementing a search 1arrant must announce their presence,
i.entify themsel%es to the accuse. an. to the persons 1ho rightfully ha%e possession of
the premises to *e searche., an. sho1 to them the search 1arrant to *e implemente. *y
them an. eAplain to them sai. 1arrant in a language or .ialect 5no1n to an. un.erstoo.
*y them, The requirement is not a mere proce.ural formality *ut is of the essence of the
su*stantial pro%ision 1hich safeguar.s in.i%i.ual li*erty,
[':]
+o precise form of 1or.s is
require., )t is sufficient that the accuse. has notice of the officers, their authority an. the
purpose of the search an. the o*Ject to *e sei9e., )t must *e emphasi9e. that the notice
requirement is .esigne. not only for the protection of the li*erty of the person to *e
searche. or of his property *ut also the safety an. 1ell>*eing of the officers ser%ing an.
implementing the search 1arrant, Enless the person to 1hom the 1arrant is a..resse.
an. 1hose property is to *e searche. is notifie. of the search 1arrant an. apprise. of the
authority of the person ser%ing the 1arrant, he may consi.er the unannounce. intrusion
into the premises as an unla1ful aggression on his property 1hich he 1ill *e Justifie. in
resisting, an. in the process, may cause inJury e%en to the life of the officer implementing
the 1arrant for 1hich he 1oul. not *e criminally lia*le, (lso, there is a %ery real possi*ility
that the police ser%ing an. implementing the search 1arrant may *e misinforme. as to the
name or a..ress of the suspect, or to other material affirmations, )nnocent citi9ens shoul.
not suffer the shoc5, fright, shame or em*arrassment atten.ant upon an unannounce.
intrusion,
['$]
)n.ee., a la1ful entry is the in.ispensa*le pre.icate of a reasona*le search, (
search 1oul. %iolate the constitutional guarantee against unreasona*le search an.
sei9ure if the entry 1ere illegal, 1hether accomplishe. *y force, or *y threat or sho1 of
force or o*taine. *y stealth, or coercion,
[=<]
Enannounce. intrusion into the premises is permissi*le 1hen (a) a party 1hose
premises or is entitle. to the possession thereof refuses, upon .eman., to open itI (*)
1hen such person in the premises alrea.y 5ne1 of the i.entity of the officers an. of their
authority an. personsI (c) 1hen the officers are Justifie. in the honest *elief that there is
an imminent peril to life or lim*I an. (.) 1hen those in the premises, a1are of the
presence of someone outsi.e (*ecause, for eAample, there has *een a 5noc5 at the .oor),
are then engage. in acti%ity 1hich Justifies the officers to *elie%e that an escape or the
.estruction of e%i.ence is *eing attempte., &uspects ha%e no constitutional right to
.estroy e%i.ence or .ispose of e%i.ence,
[=1]
2o1e%er, the eAceptions a*o%e are not
eAclusi%e or conclusi%e, (t times, 1ithout the *enefit of hin.sight an. or.inarily on the
spur of the moment, the officer must .eci.e 1hether or not to ma5e an unannounce.
intrusion into the premises, (lthough a search an. sei9ure of a .1elling might *e
constitutionally .efecti%e, if the police officersD entry 1as 1ithout prior announcement, la1
enforcement interest may also esta*lish the reasona*leness of an unannounce. entry,
[="]
)n.ee., there is no formula for the .etermination of reasona*leness, 8ach case is to *e
.eci.e. on its o1n facts an. circumstances,
[=6]
)n .etermining the la1fulness of an
unallo1e. entry an. the eAistence of pro*a*le cause, the courts are concerne. only 1ith
1hat the officers ha. reason to *elie%e an. the time of the entry,
[=-]
)ni!hards v.
Wis!onsin,
[=#]
it 1as hel. that;
O1P -n order to >ustify a 3no6<noc<4 entry# the police !ust ha.e a reasonable suspicion that
<noc<ing and announcing their presence# under the particular circu!stances# would be dangerous
or futile# or that it would inhibit the effecti.e in.estigation of the cri!e by# for e2a!ple# allowing
the destruction of e.idence. This standardQas opposed to a probable6cause re(uire!entQstri<es
the appropriate balance between the legiti!ate law enforce!ent concerns at issue in the e2ecution
of search warrants and the indi.idual pri.acy interest affected by no6<noc< entries.
[=']
(s articulate. in Bene"ield v. State o" #lorida,
[==]
1hat constitutes *rea5ing inclu.es the
lifting of a latch, turning a .oor 5no*, unloc5ing a chain or hasp, remo%ing a prop to or
pushing open a close. .oor of entrance to the house, e%en a close. screen .oor,
[=:]
2o1e%er, entry o*taine. through the use of .eception, accomplishe. 1ithout force is not
a G*rea5ingH requiring officers to first announce their authority an. purpose *ecause the
reasons *ehin. the rule are satisfie. F there 1as no real li5elihoo. of %iolence, no
un1arrante. intrusion or pri%acy an. no .amage to the resi.ence of the accuse.,
[=$]
(s to ho1 long an officer implementing a search 1arrant must 1ait *efore *rea5ing
open any .oor cannot *e .istille. into a constitutional stop1atch, 8ach case has to *e
.eci.e. on a case>to>case *asis requiring an eAamination of all the circumstances,
[:<]
The
proper trigger point in .etermining, un.er the G5noc5 an. announceH rule, 1hether the
police 1aite. long enough *efore entering the resi.ence to eAecute a 1arrant, is 1hen
those insi.e shoul. ha%e *een alerte. that the police 1ante. entry to eAecute a 1arrant,
[:1]
)n this case, 1e rule that the policemen complie. 1ith &ection =, Rule 1"' of the
Re%ise. Rules of Criminal Proce.ure *efore entering the con.ominium unit, (ppellant
/ee a.mitte., 1hen she testifie., that the police officers 1ere accompanie. *y Chuang, a
Cantonese interpreter, 1ho informe. her that his companions 1ere police officers an. ha.
a search 1arrant for the premises, an. also eAplaine. to her that the officers 1ere going
to search the con.ominium unit,
[:"]
The appellant 1as sufficiently a1are of the authority of
the policemen, 1ho 1ore P(R(C uniforms, to con.uct the search an. their purpose,
oreo%er, (nciro, 3r, tol. the appellant, in 8nglish, to *ring some clothes 1ith her as she
1as to *e *rought to the police hea.quarters, @ithout such request *eing interprete. to
the appellant, the latter .i. as she 1as .irecte. an. too5 some clothes from the ca*inet
atop the hea.*oar.,
[:6]
The e%i.ence on recor. sho1s that the police officers 5noc5e. on the outer .oor
*efore entering the con.ominium unit, an. after a 1hile, the appellant opene. the .oor
an. allo1e. the policemen an. Pangan to enter, (nciro, 3r, testifie., thus;
L Do you still recall r, @itness the i.entities of the security guar.s 1ho helpe. you or assiste. you
in implementing sai. search 1arrants at 0ran. ?illa &u*.i%isionN
( The 7)C of the 2ome 71nersD (ssociation, (ntonio Pangan, an. the 7)C of the &ecurity (gency
an. t1o (") other security guar.s,
L Do you recall the names of those persons you mentione. r, @itnessN
( ) can har.ly recall their names,
L (fter ha%ing *een assiste. or coor.inate. 1ith sai. security officers an. the 7)C of the 2ome
71nersD (ssociation, 1hat .i. you .o neAtN
( @e tol. them that if 1e coul. as5 them if they ha%e a .uplicate 5ey an. also 5noc5 an. intro.uce
oursel%es, 5noc5 on the sai. con.ominium,
L Di. they .o that, the requestN
( Kes, &ir,
L eaning to say, you arri%e. at O1$ (tlantic Dri%e, Pacific 0ran. ?illaN
( Kes, &ir,
L @hile you 1ere alrea.y at the .oor of that targete. house to implement sai. search 1arrants,
1hat happene. neAt, if anyN @hat .i. you .o after thatN
( @e 5noc5e. on the .oor an. trie. to fin. out if there 1as some*o.y there *ecause the 2ome
71nersD (ssociation .oesnDt ha%e any 5ey for the .oor, @e as5e. them to 5noc5 also *ecause
they are the ones 1ho ha%e access 1ith the tenants,
L (n. after 5noc5ing, 1hat happene. neAtN
( There 1ere aroun. # minutes, no one 1as trying to open the .oor, !y that time, 1e thought they
1ere still asleep,
L (n. then after that 1hat .i. you .o, if anyN
( @e as5e. r, Pangan to 5noc5 an. intro.uce himself an. another security guar. to try to 5noc5
on the 5itchen 1hich is on the *ac5 .oor,
L (n. then after thatN
( (n. then after that, it 1as a female person 1ho sho1e. up to (si!) the 1in.o1 of the 5itchen an.
as5e. 1ho 1e are in a sign language,
L (n. this female person 1ho sho1e. up to (si!) the 1in.o1 P ) 1ith.ra1, @ere you a*le to ha%e
a goo. loo5 on that female person 1ho sho1e. herself thru the 1in.o1N
( Kes, &ir,
L (n. 1ho is this person r, @itnessN
( &he 1as i.entifie. as 3ogy /ee, &ir,
[:-]
The appellant faile. to pro%e that the policemen *ro5e open the .oor to gain entry into
the con.ominium unit, &he coul. ha%e as5e. the court for an ocular inspection to sho1
the .oor 1hich 1as allege.ly *ro5en into *y the policemen, or at least a..uce in e%i.ence
pictures sho1ing the sai. *rea5age, The appellant faile. to .o so, The testimony of the
appellant is e%en *elie. *y Pangan, 1ho 1as a 1itness for the appellant, 1ho certifie.,
along 1ith three other security guar.s, that nothing 1as .estroye. an. that the search
1as con.ucte. in a peaceful an. or.erly manner,
[:#]
@e are not imper%ious of the testimony of Pangan that the policemen 5ic5e. the outer
.oor to gain entry into the con.ominium unit, 1hich testimony is seemingly in .erogation
of his certification, 2o1e%er, Pangan a.mitte. that the policemen .i. so only after
5noc5ing on the .oor for three (6) to fi%e (#) minutes an. after he ha. calle. /ao in a lou.
%oice an. recei%e. no response from the appellants;
L Di. you come to 5no1 the persons 1herein your presence 1as *eing require. accor.ing to your
security guar.sN
( (ccor.ing to my security guar.s, they intro.uce. themsel%es as police operati%es,
L Di. you comply 1ith the in%itation of these police authoritiesN
( Kes, they calle. me an. accor.ing to them, they 1ill search Enit 1$, that is 1hat they tol. me,
L Can you please tell us 1hat time .i. the police operati%es con.uct the searchN
( ) cannot recall anymore *ecause the inci.ent happene. in 1$$', ) .onDt 5no1 1hat time 1as
that,
L @hen they con.ucte. the search, 1ere you thereN
( ) 1as there *ecause that unit cannot *e opene. if the careta5er is not present,
L (re you trying to say that you 1ere the one 1ho opene. the .oor of that unit occupie. *y 2enry
Cau ChungN
( They 5ic5e. the .oor an. 1hen no*o.y opene. the .oor, they pushe. the .oor an. the .oor 1as
opene.,
L They forci*ly opene. the .oor 1hen no*o.y opene. itN
( $a%a na&an po 'ina(a )%on dahil nandoon na&an po an' !aretaker* (ala na&an pon'
&asa&an' &an'%a%ari dahil nandoon na&an po an' na&a&ahala,
L Brom the time you 5noc5e. at the .oor of this unit up to the time that the police operati%es forci*ly
*rea5 open the .oor, ho1 many minutes ha. elapse.N
( +ata'al din po silan' ku&akatok sa pintuan, ) sai., Gr, 2enry, pakibuksan n,%o an' pinto,
1oul. you min. to open the .oor, kasi &eron' &'a poli!e o""i!ers na 'uston' &a-sear!h iton'
unit &o, Then, 1hen no*o.y 1as ans1ering, they forci*ly opene. the .oor,
L @as there any other occupant other than 2enry Cau Chung in that unit at that timeN
( (t the secon. floor, they sa1 this 3ogy /ee an. her male companion 1hom ) .o not 5no1,
L !ut .uring the time that you 1ere trying to see5 entry to the .oor, there 1as no one 1ho
respon.e., is that correctN
( Par.on, &irN
L (t the time that you 1ere trying to 5noc5 at the .oor, there 1as no one 1ho respon.e. to your
5noc5ing at the .oorN
( +o*o.y 1as ans1ering, &ir,
L (n. that compelle. the police operati%es to open the .oor forci*lyN
( Kes, &ir,
[:']
P
C7ERT;
Brom the first time you 5noc5e. at the .oor, ho1 long a time lapse. *efore the police officer
*ro5e open the .oorN
( +ata'al din po,
L Bor ho1 longN
( ay*e for a*out three to fi%e minutes,
L @hen no*o.y 1as ans1ering, they force. open the .oorN
( Kes, Kour 2onor,
C7ERT;
Continue,
[:=]
The appellant faile. to pro%e, 1ith clear an. con%incing e%i.ence, her contention that
(nciro, 3r, place. the shabu on her *e. *efore he continue. his search in the *e.room,
an. that she 1as a %ictim of frame>up *y the policemen, &he relie. on her testimony an.
those of Pangan an. Berias that they .i. not see (nciro, 3r, .isco%er an. ta5e custo.y of
the shabu in the ca*inet,
The appellantDs .efense of frame>up is nothing ne1, )t is a common an. stan.ar. line
of .efense in most prosecutions for %iolation of the Dangerous Drugs /a1, @hile such
.efense cannot an. shoul. not al1ays *e consi.ere. as contri%e., nonetheless, it is
generally reJecte. for it can easily *e concocte. *ut is .ifficult to pro%e, Police officers
are, after all, presume. to ha%e acte. regularly in the performance of their official
functions, in the a*sence of clear an. con%incing proof to the contrary, or that they are
moti%ate. *y ill>1ill,
[::]
)t is true, as testifie. *y Pangan an. Berias that, they .i. not see (nciro, 3r, .isco%er
an. ta5e custo.y of the shabu su*Ject of this case, 2o1e%er, as eAplaine. *y Pangan, he
remaine. in the groun. floor of the con.ominium unit 1hile (nciro, 3r,, Castillo an.
argallo searche. the *e.room of appellant /ee an. her lo%er /ao, an. Berias procee.e.
to the room occupie. *y appellant 4hen 2ua 1here he con.ucte. his search, Thus,
Pangan testifie.;
L @hen the masterDs *e.room 1as searche. 1here 3ogy /ee 1as then, accor.ing to you, sleeping,
.i. you accompany the P(R(C mem*ersN
( +o, &ir, *ecause ) 1as tal5ing to a mem*er of the P(R(C .o1nstairs,
L @hat a*out the mem*ers of the security forceN
( They 1ere outsi.e, &ir,
L During the search ma.e on the masterDs *e.roomN
( Kes, &ir,
L 2o1 a*out 1hen the search 1as ma.e in the room occupie. *y 2uang 4hen 2ua, 1ere you
present thenN
( +o, &ir, ) 1as still .o1nstairs,
L 2o1 a*out the other guar.sN
( They 1ere also outsi.e,
[:$]
Bor his part, Berias .eclare.;
L )n other 1or.s, you .i. not go insi.e the *iggest roomN
( +o, &ir,
L Kou procee.e. to another room 1here co>accuse. 2uang 4hen 2ua 1as then sleepingN
( Kes, &ir,
L @hat happene. neAtN
( @e 1o5e up 2uang 4hen 2ua an. 1e intro.uce. oursel%es to him as police officers,
L @hat 1as the reaction of 2uang 4henhuaN
( 2e 1as surprise.,
[$<]
P
L )n other 1or.s, you .i. not go insi.e the *iggest roomN
( +o, &ir,
L Kou procee.e. to another room 1here co>accuse. 2uang 4hen 2ua 1as then sleepingN
( Kes, &ir,
L @hat happene. neAtN
( @e 1o5e up 2uang 4hen 2ua an. 1e intro.uce. oursel%es to him as police officers,
L @hat 1as the reaction of 2uang 4hen 2uaN
( 2e 1as surprise.,
[$1]
Pangan testifie. that *efore the police officers con.ucte. their search in the secon.
floor of the con.ominium unit, he .i. not see them *ring in anything;
L !ut you are %ery sure that *efore the police officers searche. the unit, you .i. not see them
*ringing anything 1ith them, they 1ere all empty>han.e.N
( ) .i. not see, &ir,
[$"]
+o less than Pangan himself, a 1itness for the appellants, an. three of the security
guar.s of the su*.i%ision, 1ho accompanie. the policemen in implementing the search
1arrants, certifie. that, 1hat 1as foun. insi.e the con.ominium unit an. confiscate. *y
the policemen 1ere t1o plastic *ags 1hich containe. 1hite crystalline po1.er su*stances
suspecte. to *e shabu,
[$6]
The appellant a.mitte. that she sa1 shabu in her *e.room 1hile the policemen 1ere
there, &he claime. that the policemen place. the plastic *ag on the *e. *efore they
starte. the search an. that she notice. the shabu only after he returne. from the room of
appellant 4hen 2ua to see if he 1as alrea.y a1a5e is har. to *elie%e,
Birst, @e fin. it incre.i*le that the policemen place. the shabu on the appellantDs *e.,
in her full %ie1, for 1hich the latter coul. *e prosecute. for planting e%i.ence an., if
con%icte., sentence. to .eath un.er &ection 1$ of Rep, (ct ='#$;
)&*T-O% 19. )ection 28 of ?epublic ,ct %o. G82=# as a!ended# <nown as the 0angerous ,ct of
19L2# is hereby a!ended to read as follows1
)ec. 28. Penalties for Do.ern!ent Officials and &!ployees and Officers and e!bers of Police
,gencies and the ,r!ed 'orces# RPlantingM of &.idence.Q The !a2i!u! penalties pro.ided for
OinP )ection ;# 8(1)# =(1)# G# L# :# 9# 11# 12 and 1; of ,rticle -- and )ections 18# 186,# 1=(1)# 1G and
19 of ,rticle --- shall be i!posed# if those found guilty of any of the said offenses are go.ern!ent
officials# e!ployees or officers# including !e!bers of police agencies and the ar!ed forces.
,ny such abo.e go.ern!ent official# e!ployee or officer who is found guilty of 3planting4 any
dangerous drugs punished in )ections ;# 8# L# :# 9 and 1; of ,rticle -- and )ections 18# 186,# 1=
and 1G of ,rticle --- of this ,ct in the person or in the i!!ediate .icinity of another as e.idence to
i!plicate the latter# shall suffer the sa!e penalty as therein pro.ided.
&econ., The appellant faile. to inform her counsel of the allege. planting of e%i.ence
*y the policemenI if she ha. .one so, for sure, the sai. counsel 1oul. ha%e prepare. her
affi.a%it an. file. the appropriate motion in court for the suppression of the thingsMarticles
sei9e. *y the policemen,
Thir., The appellant faile. to charge the policemen 1ith planting of e%i.ence *efore or
after she 1as charge. of %iolation of Rep, (ct +o, '-"#, as amen.e.,
Bourth, The appellant cannot e%en i.entify an. .escri*e the policeman or policemen
1ho allege.ly plante. the e%i.ence,
The fact is that, as gleane. from the affi.a%it of arrest signe. *y (nciro, 3r, an. Berias,
the articles an. su*stances foun. an. confiscate. from the con.ominium unit of /ao an.
appellant /ee at (tlantic Dri%e an. at the Citylan. con.ominium unit of /ao an. Chan
1ere itemi9e. as follo1s;
a. TWO (2) Big Transparent Plastic Bags containing about one (1) <ilo each of white crystalline
granules later tested to be etha!pheta!ine "ydrochloride or Shabu# a regulated drug$
b. O%& (1) Transparent Plastic Baby 'eeding Bottle containing undeter!ined (uantity of
suspected Shabu$
c. O%& (1) )!all Plastic *anister also containing undeter!ined a!ount of suspected Shabu +
d. ,ssorted Pieces of Shabu Paraphernalia consisting of -!pro.ised Tooters used for
sniffing shabu# -!pro.ised Burners used for burning Shabu# alu!inu! foils# etc.$
+
a. TWO (2) KettlesCPots containing !ore or less 1 S <ilos of ?aw Shabu or etha!pheta!ine
"ydrochloride$
b. Two (2) Big Transparent Plastic Bags containing !ore or less Two (2) Kilos of Shabu$
c. Three (;) Plastic Basins# s!all# !ediu!# large# used for containers of finishedCcoo<ed Shabu$
c. )e.eral pieces of Plastic )trainers used for draining out li(uids fro! finished Shabu$
e. One (1) Plastic *ontainer with li(uid che!ical of undeter!ined ele!ent$
f. )e.eral pieces of )poons and ladles with traces of raw Shabu used in stirring !i2tures
g. One (1) &lectric *oo<ing )to.e wCone coil burner$
h. One (1) /nit *ard a<ing achine$
i. One (1) /nit *ard )ta!ping achine$
>. )e.eral pieces of *redit *ards and Telephone *ards$
[$-]
(nciro, 3r, place. his initials on the plastic *ags containing 1hite crystalline po1.er
1hich 1ere foun. an. confiscate. at (tlantic Dri%e an., in the company of Berias,
.eli%ere. the same to the P+P Crime /a*oratory for eAamination, per the request of
Police &uperinten.ent 3anice P, .e 0u9man, the chief of the P(R(C,
@e agree 1ith the appellant that she 1as not one of the accuse. name. in the search
1arrants, 2o1e%er, such fact .i. not proscri*e the policemen from arresting her an.
charging her of %iolation of Rep, (ct +o, '-"#, as amen.e., There 1as, in fine, pro*a*le
cause for her 1arrantless arrest in.epen.ent of that foun. *y 3u.ge @illiam !ayhon 1hen
he issue. the search 1arrants against /ao an. Chan for search of the con.ominium units
at (tlantic Dri%e an. Citylan.,
Pro*a*le cause eAists for the 1arrantless .etention an. arrest of one at the premises
*eing searche. 1hen the facts an. circumstances 1ithin their 5no1le.ge an. of 1hich
they ha. relia*le an. trust1orthy information are sufficient to themsel%es 1arrant a
reasona*le *elief of a cautious person that an offense has *een or is *eing committe.,
[$#]
)t
has *een hel. that;
Probable cause for the arrest of petitioner 0iane Ker# while not present at the ti!e the officers
entered the apart!ent to arrest her husband# was ne.ertheless present at the ti!e of her arrest.
/pon their entry and announce!ent of their identity# the officers were !et not only by Deorge Ker
but also by 0iane Ker# who was e!erging fro! the <itchen. Officer Ber!an i!!ediately wal<ed to
the doorway fro! which she e!erged and# without entering# obser.ed the bric<6shaped pac<age of
!ari>uana in plain .iew. &.en assu!ing that her presence in a s!all roo! with the contraband in a
pro!inent position on the <itchen sin< would not alone establish a reasonable ground for the
officersM belief that she was in >oint possession with her husband# that fact was acco!panied by the
officersM infor!ation that Ker had been using his apart!ent as a base of operations for his narcotics
acti.ities. Therefore# we cannot say that at the ti!e of her arrest there were no sufficient grounds
for a reasonable belief that 0iane Ker# as well as her husband# were co!!itting the offense of
possession of !ari>uana in the presence of the officers.
[$']
)n .raper v. United States,
[$=]
it 1as hel. that informations from a relia*le informant,
corro*orate. *y the police officerDs o*ser%ations as to the accuracy of the .escription of
the accuse., an. of his presence at a particular place, is sufficient to esta*lish pro*a*le
cause, )n this case, the police officers recei%e. relia*le information an. %erifie., after
sur%eillance, that appellant /ee an. /ao 1ere li%ing together as hus*an. an. 1ife in the
con.ominium unit an. that appellant /ee han.le. the accounting of the payments an.
procee.s of the illegal .rug traffic5ing acti%ities of /ao, )n.ee., the policemen foun. that
the appellant occupie. the *e.room an. slept in the same *e. use. *y /ao, The
appellant too5 her clothes from the same ca*inet 1here the su*Ject shabu an.
paraphernalia 1ere foun. *y (nciro, 3r, The appellant ha. *een li%ing in the same
con.ominium unit 1ith /ao since 7cto*er 1, 1$$' until her arrest on 7cto*er "#, 1$$',
(long 1ith /ao, the appellant thus ha. Joint control an. possession of the *e.room, as
1ell as of the articles, paraphernalia, an. the shabu foun. therein, &uch facts an.
circumstances are sufficient on 1hich to *ase a reasona*le *elief that the appellant ha.
Joint possession of the regulate. .rugs foun. in the *e.room along 1ith /ao, her li%e>in
partner, in line 1ith our ruling in People v. Tira,
[$:]
Bor the purpose of prosecution for
%iolation of the Dangerous Drugs /a1, possession can *e constructi%e an. nee. not *e
eAclusi%e, *ut may *e Joint,
[$$]
(.mitte.ly, (nciro, 3r, sei9e. an. too5 custo.y of certain articles *elonging to the
appellant an. /ao 1hich 1ere not .escri*e. in the search 1arrants, 2o1e%er, the sei9ure
of articles not liste. in a search 1arrant .oes not ren.er the sei9ure of the articles
.escri*e. an. liste. therein illegalI nor .oes it ren.er ina.missi*le in e%i.ence such
articles 1hich 1ere .escri*e. in the 1arrant an. sei9e. pursuant thereto, oreo%er, it
*ears stressing that (nciro, 3r, sa1 the unliste. articles 1hen he an. the other policemen
implemente. the search 1arrants, &uch articles 1ere in plain %ie1 of (nciro, 3r, as he
implemente. the search 1arrants an. 1as authori9e. to sei9e the sai. articles *ecause of
their close connection to the crime charge., (s hel. in /oolid'e* 0r. v. 1e( Ha&pshire;
[1<<]
,n e2a!ple of the applicability of the Rplain .iewM doctrine is the situation in which the police ha.e
a warrant to search a gi.en area for specified ob>ects# and in the course of the search co!e across
so!e other article of incri!inating character. +
Where the initial intrusion that brings the police within plain .iew of such an article is supported#
not by a warrant# but by one of the recogniIed e2ceptions to the warrant re(uire!ent# the seiIure is
also legiti!ate. Thus# the police !ay inad.ertently co!e across e.idence while in Rhot pursuitM of a
fleeing suspect. + ,nd an ob>ect that co!es into .iew during a search incident to arrest that is
appropriately li!ited in scope under e2isting law !ay be seiIed without a warrant.+ 'inally# the
Rplain .iewM doctrine has been applied where a police officer is not searching for e.idence against
the accused# but nonetheless inad.ertently co!es across an incri!inating ob>ect. +
[1<1]
)t cannot *e .enie. that the car.s, pass*oo5, passport an. other .ocuments an.
papers seen *y the policemen ha%e an intimate neAus 1ith the crime charge. or, at the
%ery least, incriminating, The passport of the appellant 1oul. sho1 1hen an. ho1 often
she ha. *een in an. out of the country, 2er cre.it car.s an. *an5 *oo5 1oul. in.icate
ho1 much money she ha. amasse. 1hile in the country an. ho1 she acquire. or earne.
the same, The pictures an. those of the other persons sho1n therein are rele%ant to
sho1 her relationship to /ao an. Chan,
[1<"]
Contrary to the claim of the appellant, it is not true that the trial court faile. to pro%i.e
an interpreter 1hen she testifie., The recor.s sho1 that a Cantonese interpreter atten.e.
the trial an. interprete. her testimony, The Rules of Court .oes not require the trial court
to pro%i.e the appellant 1ith an interpreter throughout the trial, (n interpreter is require.
only if the 1itness on the stan. testifies in a language other than in 8nglish or is a .eaf>
mute, The appellant may procure the ser%ices of an interpreter at her o1n eApense,
Contrary to the claim of appellant /ee, the prosecution a..uce. proof *eyon.
reasona*le .ou*t of her guilt of the crime charge., &he an. /ao, her lo%er, ha. Joint
possession of the shabu1hich the policemen foun. an. confiscate. from her *e.room,
IN LIGHT OF LL THE FOREGOING, the appeal of appellant 2uang 4hen 2ua is
0R(+T8D, The Decision of the Regional Trial Court of Paraaque City, con%icting him of
the crime charge., is R8?8R&8D (+D &8T (&)D8, The sai. appellant is (CLE)TT8D
of sai. charge, The Director of the !ureau of Corrections is here*y .irecte. to release the
sai. appellant from .etention unless he is .etaine. for another cause or charge, an. to
su*mit to the Court, 1ithin fi%e (#) .ays from notice hereof, a report of his compliance 1ith
the .irecti%e of the Court,
The appeal of appellant 3ogy /ee is D8+)8D, The Decision .ate. 3anuary 1<, 1$$$,
of the Regional Trial Court of Paraaque City, con%icting her of %iolation of &ection 1',
Rep, (ct +o, '-"# is (BB)R8D, +o costs,
U.S. Supreme Court
In %& 9a4a'/(.a, 127 6.#. 1 A1246B
In %& 9a4a'/(.a
N,. 61, M(':.
A%)+&d *an+a%y 7, 8, 1246
D&:(d&d 7&5%+a%y 4, 1246C
127 6.#. 1
,llabus
"rior to September 2, '(7:, petitioner was the Commanding =eneral of the Fourteenth .rmy =roup
of the ;mperial 9apanese .rmy in the "hilippine ;slands+ <n that day, he surrendered to the Dnited
States .rmy and became a prisoner of war+ 4espondent was the Commanding =eneral of the Dnited
States .rmy Forces, Hestern "acific, whose command embraced the "hilippine ;slands+ 4espondent
appointed a military commission to try the petitioner on a charge of 0iolation of the law of war+ The
gist of the charge was that petitioner had failed in his duty as an army commander to control the
operations of his troops, Cpermitting them to commitC specified atrocities against the ci0ilian
population and prisoners of war+ "etitioner was found guilty, and sentenced to death+
<el2=
'+ The military commission appointed to try the petitioner was lawfully created+ "+ 21) D+ S+ (+
(a) 5ature of the authority to create military commissions for the trial of enemy combatants for
offenses against the law of war, and principles go0erning the exercise of @urisdiction by such
commissions, considered+ Citing >? 1arte Quirin! 2') D+ S+ ', and other cases+ "p+ 21) D+ S+ )3(+
(b) . military commission may be appointed by any field commander, or by any commander
competent to appoint a general court3martial, as was respondent by order of the "resident+ "+ 21) D+
S+ '8+
(c) The order creating the military commission was in conformity with the .ct of Congress ('8 D+S+C+
dd '7)'3':(2) sanctioning
"age 21) D+ S+ 1
the creation of such tribunals for the trial of offenses against the law of war committed by enemy
combatants+ "+ 21) D+ S+ ''+
1+ Trial of the petitioner by the military commission was lawful, although hostilities had ceased+
"+ 21) D+ S+ '1+
(a) . 0iolation of the law of war, committed before the cessation of hostilities, may lawfully be tried
by a military commission after hostilities ha0e ceased 33 at least until peace has been officially
recogniBed by treaty or proclamation by the political branch of the =o0ernment+ "+ 21) D+ S+ '1+
(b) Trial of the petitioner by the military commission was authoriBed by the political branch of the
=o0ernment, by military command, by international law and usage, and by the terms of the
surrender of the 9apanese go0ernment+ "+ 21) D+ S+ '2+
2+ The charge preferred against the petitioner was of a 0iolation of the law of war+ "+21) D+ S+ '2+
(a) The law of war imposes on an army commander a duty to ta$e such appropriate measures as are
within his power to control the troops under his command for the pre0ention of acts which are
0iolations of the law of war and which are li$ely to attend the occupation of hostile territory by an
uncontrolled soldiery, and he may be charged with personal responsibility for his failure to ta$e such
measures when 0iolations result+ "p+ 21) D+ S+ '7, 21) D+ S+ '6+
(b) Hhat measures, if any, petitioner too$ to pre0ent the alleged 0iolations of the law of war, and
whether such measures as he may ha0e ta$en were appropriate and sufficient to discharge the duty
imposed upon him, were /uestions within the peculiar competence of the military officers composing
the commission, and were for it to decide+ "+ 21) D+ S+ '6+
(c) Charges of 0iolations of the law of war triable before a military tribunal need not be stated with
the precision of a common law indictment+ "+ 21) D+ S+ ')+
(d) The allegations of the charge here, tested by any reasonable standard, sufficiently set forth a
0iolation of the law of war, and the military commission had authority to try and to decide the issue
which it raised+ "+ 21) D+ S+ ')+
7+ ;n admitting on behalf of the prosecution a deposition and hearsay and opinion e0idence, the
military commission did not 0iolate any .ct of Congress, treaty, or military command defining the
commissionGs authority+ "p+ 21) D+ S+ '*, 21) D+ S+ 12+
(a) The .rticles of Har, including .rticles 1: and 2*, are not applicable to the trial of an enemy
combatant by a military commission
"age 21) D+ S+ 2
for 0iolations of the law of war, and imposed no restrictions upon the procedure to be followed in
such trial+ "p+ 21) D+ S+ '(318+
(b) .rticle 62 of the =ene0a Con0ention of '(1(, which pro0ides that
CSentence may be pronounced against a prisoner of war only by the same courts and according to
the same procedure as in the case of persons belonging to the armed forces of the detaining "ower,C
does not re/uire that .rticles 1: and 2* of the .rticles of Har be applied in the trial of the petitioner+
.rticle 62 refers to sentence Cpronounced against a prisoner of warC for an offense committed while a
prisoner of war, and not for a 0iolation of the law of war committed while a combatant+ "+ 21) D+ S+
18+
(c) The Court expresses no opinion on the /uestion of the wisdom of considering such e0idence as
was recei0ed in this proceeding, nor on the /uestion whether the action of a military tribunal in
admitting e0idence which Congress or controlling military command has directed to be excluded may
be drawn in /uestion by petition for habeas corpus or prohibition+ "+ 21) D+ S+ 12+
:+ <n an application for habeas corpus, the Court is not concerned with the guilt or innocence of the
petitioner+ "+ 21) D+ S+ *+
6+ ,y sanctioning trials of enemy aliens by military commission for offenses against the law of war,
Congress recogniBed the right of the accused to ma$e a defense, and did not foreclose their right to
contend that the Constitution or laws of the Dnited States withhold authority to proceed with the
trial+ "+ 21) D+ S+ (+
)+ The Court does not appraise the e0idence on which the petitioner here was con0icted+ "+ 21) D+ S+
')+
*+ The military commissionGs rulings on e0idence and on the mode of conducting the proceedings
against the petitioner are not re0iewable by the courts, but only by the re0iewing military authorities+
From this 0iewpoint, it is unnecessary to consider what, in other situations, the Fifth .mendment
might re/uire+ "p+ 21) D+ S+ *, 21) D+ S+ 12+
(+ .rticle 68 of the =ene0a Con0ention of '(1(, which pro0ides that,
C.t the opening of a @udicial proceeding directed against a prisoner of war, the detaining "ower shall
ad0ise the representati0e of the protecting "ower thereof as soon as possible, and always before the
date set for the opening of the trial,C
applies only to persons who are sub@ected to @udicial proceedings for offenses committed while
prisoners of war+ "+ 21) D+ S+ 12+
'8+ The detention of the petitioner for trial, and his detention upon his con0iction, sub@ect to the
prescribed re0iew by the military authorities, were lawful+ "+ 21) D+ S+ 1:+
Aea0e and petition denied+
"age 21* D+ S+ 7
5o+ 6', >isc+ .pplication for lea0e to file a petition for writs of habeas corpus and prohibition in this
Court challenging the @urisdiction and legal authority of a military commission which con0icted
applicant of a 0iolation of the law of war and sentenced him to be hanged+ &enie2.
5o+ 6)1+ "etition for certiorari to re0iew an order of the Supreme Court of the Commonwealth of the
"hilippines, 71 <ff+=aB+ 667, denying an application for writs of habeas corpus and prohibition
li$ewise challenging the @urisdiction and legal authority of the military commission which tried and
con0icted petitioner+ &enie2.
9a4a'/(.a 3'. #.y&%
=+4+ A3'1( -ecember '(, '(7:
4onente= (oran! C.;.
Facts:
'+ Yamashita was the Commanding =eneral of the 9apanese army in the "hilippines during Horld Har
1+ &e was charged before the .merican military commission for war crimes+
1+ &e filed a petition for habeas #or1us and prohibition against =en+ Styler to reinstate his status as
prisoner of war from being accused as a war criminal+ "etitioner also /uestioned the @urisdiction of
the military tribunal+
I''+&: @/&./&% ,% n,. ./& 4(0(.a%y .%(5+na0 /a' D+%('d(:.(,n
&eld:
Y!S+
'+ The military commission was lawfully created in conformity with an act of Congress sanctioning the
creation of such tribunals+
1+ The laws of war imposes upon a commander the duty to ta$e any appropriate measures within his
powers to control the troops under his command to pre0ent acts which constitute 0iolation of the
laws of war+ &ence, petitioner could be legitimately charged with personal responsibility arising from
his failure to ta$e such measure+ ;n this regard the SC in0o$ed .rt+ ' of the &ague Con0ention 5o+ ;?
of '(8), as well as .rt+ '( of &ague Con0ention 5o+ J, .rt+ 16 of '(1( =ene0a Con0ention among
others+
2+ <abeas #or1us is untenable since the petitioner merely sought for restoration to his former status
as prisoner of war and not a discharge from confinement+ This is a matter of military measure and
not within the @urisdiction of the courts+
7+ The petition for prohibition against the respondent will also not life since the military commission is
not made a party respondent in the case+ .s such, no order may be issued re/uiring it to refrain from
trying the petitioner+
Curo.a 1as the highest ran5ing 3apanese officer statione. in the Philippines .uring the 3apanese occupation, 2e
1as then charge. *efore the ilitary Commission .ue to the atrocities that 1ere .one against non com*atant
ci%ilians an. prisoners .uring the 1ar, 2is trial 1as in pursuant to 87 +o, ': 1hich esta*lishe. the +ational @ar
Crimes 7ffice an. prescri*ing rules an. regulations go%erning the trial of accuse. 1ar criminals, Curo.a is
questioning the legality of the sai. 87 arguing that the same is not pro%i.e. for in the Constitution, 2e further
un.erscores the fact that the Philippines is not a signatory of the 2ague Con%ention on Rules an. Regulations
Co%ering /an. @arfare hence 1e cannot impose against him any criminal charges *ecause it has no la1s to *ase
on, national or international,
ISSUE2 @hether or not Curo.a can *e charge. in Philippine courtsN
HEL'2 87 +o, ': is constitutional hence the Philippine courts can ta5e cogni9ance of the case at *ar, 87 +o ': is
in pursuant to the constitutional pro%ision that states Gthe Philippines renounces 1ar as an instrument of national
policy, an. adopts the 'enerall% a!!epted prin!iples o" international la( as part o" the la( o" the nation,H The 2ague
Con%ention an. other similar con%entions 1hose principles are generally accepte. are hence consi.ere. as part of
the la1 of the lan.,
Bacts
&hinegori Curo.a, a former /ieutenant>0eneral of the 3apanese )mperial (rmy an. Comman.ing 0eneral of the
3apanese )mperial Borces in the Philippines 1as charge. *efore the Philippine ilitary Commission for 1ar crimes, (s he
1as the comman.ing general .uring such perio. of 1ar, he 1as trie. for failure to .ischarge his .uties an. permitting the
*rutal atrocities an. other high crimes committe. *y his men against noncom*atant ci%ilians an. prisoners of the
3apanese forces, in %iolation of of the la1s an. customs of 1ar,
Curo.a, in his petition, argues that the ilitary Commission is not a %ali. court *ecause the la1 that create. it, 8Aecuti%e
7r.er +o, ':, is unconstitutional, 2e further conten.s that using as *asis the 2ague Con%entionDs Rules an. Regulations
co%ering /an. @arfare for the 1ar crime committe. cannot stan. groun. as the Philippines 1as not a signatory of such
rules in such con%ention, Burthermore, he alleges that the Enite. &tates is not a party of interest in the case an. that the
t1o E& prosecutors cannot practice la1 in the Philippines,
)ssue
1,@hether or not 8Aecuti%e 7r.er +o, ': is constitutional
",@hether or not the E& is a party of interest to this case
Ruling
The &upreme Court rule. that 8Aecuti%e 7r.er +o, ':, creating the +ational @ar Crimes 7ffice an. prescri*ing rules on
the trial of accuse. 1ar criminals, is constitutional as it is aligne. 1ith &ec 6,(rticle " of the Constitution 1hich states that
GThe Philippines renounces 1ar as an instrument of national policy an. a.opts the generally accepte. principles of
international la1 as part of the la1 of the nation,H The generally accepte. principles of international la1 inclu.es those
forme. .uring the 2ague Con%ention, the 0ene%a Con%ention an. other international Jurispru.ence esta*lishe. *y Enite.
+ations, These inclu.e the principle that all persons, military or ci%ilian, 1ho ha%e *een guilty of planning, preparing or
1aging a 1ar of aggression an. of the commission of crimes an. offenses in %iolation of la1s an. customs of 1ar, are to
*e hel. accounta*le, )n the .octrine of incorporation, the Philippines a*i.es *y these principles an. therefore has a right
to try persons that commit such crimes an. most especially 1hen it is committe. againsts its citi9ens, )t a*i.es 1ith it
e%en if it 1as not a signatory to these con%entions *y the mere incorporation of such principles in the constitution,
The Enite. &tates is a party of interest *ecause the country an. its people ha%e *een equally, if not more greatly,
aggrie%e. *y the crimes 1ith 1hich the petitioner is charge. for, !y %irtue of 8Aecuti%e 7r.er +o, ':, the ilitary
Commission is a special military tri*unal an. that the rules as to parties an. representation are not go%erne. *y the rules
of court *ut *y the %ery pro%isions of this special la1,
Facts : Shigenori Kuroda, a formerly a Lietenant-General of the japanese imperial army and
commanding general of the japanese imperial forces in the philippines during a period
covering 1943 and 1944 ho is no charge !efore a military commission convened !y the
chief of staff of the armed forces of the philippines ith having unlafully disregarded
and failed to discharge his duties as such command, permitting them to commit !rutal
atrocities and other high crimes against noncom!atant civilians and prisoners of the
imperial japanese forces in the violations of the las and customer of ar"
#etitioner argues that respondent $ilitary %ommission has no jurisdiction to try
petitioner for its acts committed in violation of &ague %onvention and the Geneva
convention !ecause the #hilippines is not signatory to &ague %onvention and signed the
Geneva only in 194'" &e also challenges the participation of the to (merican attorneys
in the prosecution of his case on the ground that said attorneys are not )ualified to
practice la in the #hilippines"
Issues:
1" *hether or not the e+ecutive order no" ,- is a ground for the violations of our
provision of constitutions la and to our local la"
." *hether or not (tty" $elville S" &ussey and /o!ert #ort is alloed to practice the la
professions in the philippines"
Ruling : 0he court holds that the 1+ecutive 2rder is valid and %onstitutional"
(rticle . of our %onstitution provides in its section 3 that 3 0he #hilippines renounces
ar as an instruments of national policy and adopts the generally accepted principle of
international la as part of the la of nation"3
4n accordance ith the generally accepted principles of international la of the present
day, including the &ague and Geneva %onvention and significant precedents of
international jurisprudence esta!lished !y the 5"6, all the persons, military or
civilian, ho have !een guilty of planning, preparing, or aging a ar of aggression and
commission of the crimes and offenses conse)uential and incidental thereto, in violation
of the las and customs of ar of humanity and civili7ation, are held accounta!le
therefore" %onse)uently, in the promulgation and enforcement of 1+ecutive 2rder no" ,-,
the #resident of the #hilippines has acted in conformity ith the generally accepted
principles and policies of international la hich are part our %onstitution"
2n the second issue, the court ruled that the appointment of the to (merican attorneys
is not violative of our national sovereignty" 4t is only fair and proper that the 5"S
hich has su!mitted the vindication of crimes against her government and her people to a
tri!unal of our nation should !e alloed representation in the trial of those very
crimes" 0he lest that e could do in the spirit of comity is to allo this representation
in said trial"
0he petition as denied"
[G.R. N,. L?2662. Ma%:/ 26, 1242. ]
#HIGENORI K6RODA, Petitioner, 3. MaD,% G&n&%a0 RA7AEL *ALANDONI, =%()ad(&% G&n&%a0 !ALIEO
D6<6E, !,0,n&0 MARGARIO ORAL=A, !,0,n&0 IRENEO =6EN!ON#E*O, !,0,n&0 $EDRO A=6ENA, MaD,%
7EDERI!O ARANA#, MELVILLE #. H6##E9 and RO=ER $OR, Respondents.
$&d%, #&%%an, *,'& G. L+F5an, and L(5&%a., =. !(n:, -,% Petitioner.
7%&d R+(> !a'.%,, 7&d&%(:, A%&na', Ma%(an, 9&n):,, *%., R(:a%d, A. A%:(00a, and #. M&3(00& H+''&y
-,% Respondents.
#9LLA=6#
'+ C<5ST;TDT;<5.A A.HF ?.A;-;TY <F !J!CDT;?! <4-!4 5<+ 6* !ST.,A;S&;5= . 5.T;<5.A H.4 C4;>!S
<FF;C!+ b !xecuti0e <rder 5o+ 6* which was issued by the "resident of the "hilippines on the 1(th day of 9uly, '(7),
is 0alid in its section 2 that CThe "hilippines renounces war as an instrument of national policy, and adopts the
generally accepted principles of international law as part of the law of the nation+Ccralaw 0irtua'aw library
1+ ;5T!45.T;<5.A A.HF ?;<A.T<4S <F T&! A.HS .5- CDST<>S <F H.4, <F &D>.5;TY .5- C;?;A;].T;<5,
A;.,;A;TY .5- 4!S"<5S;,;A;TY <F+ b ;n accordance with the generally accepted principles of international law of the
present day, including the &ague Con0ention, the =ene0a Con0ention and significant precedents of international
@urisprudence established by the Dnited 5ations, all those persons, military of ci0ilian, who ha0e been guilty of
planning, preparing or waging a war of aggression and of the commission of crimes and offenses conse/uential and
incidental thereto, in 0iolation of the laws and customs of war, of humanity and ci0iliBation, are held accountable
therefor+
2+ ;-+F "<H!4 <F T&! "4!S;-!5T <F T&! "&;A;"";5!S+ b ;5 the promulgation and enforcement of !xecuti0e <rder
5o+ 6*, the "resident of the "hilippines has acted in conformity with the generally accepted principles and policies and
international law which are part of our constitution+
7+ C<5ST;TDT;<5.A A.HF "<H!4 <F "4!S;-!5T .S C<>>.5-!4 ;5 C&;!F <4 .4>!- F<4C!S <F T&!
"&;A;"";5!S+ b The promulgation of said executi0e order is an exercise by the "resident of his powers as Commander
in Chief of all our armed forces+
:+ ;-+F ;-+F b The "resident as Commander in Chief is fully empowered to consummate this unfinished aspects of
war, namely, the trial and punishment of war criminals, through the issuance and enforcement of !xecuti0e <rder 5o+
6*+
6+ ;5T!45.T;<5.A A.HF &.=D! .5- =!5!?. C<5?!5T;<5 F<4> ".4T <F T&! A.H <F T&! "&;A;"";5!SF !?!5 ;F
T&! "&;A;"";5!S H.S 5<T S;=5.T<4Y T&!4!<F, "4<?;S;<5S <F "&;A;"";5! C<5ST;TDT;<5 &.S ,!!5
C<>"4!&!5S;?! T< T&.T !FF!CT+ b The rules and regulations of the &ague and =ene0a Con0entions form part of
and are wholly based on the generally accepted principles of international law+ ;n fact, these rules and principles were
accepted by the two belligerent nations, the Dnited States and 9apan, who were signatories to the two Con0entions+
Such rules and principles, therefore, form part of the law of our nation e0en if the "hilippines was not a signatory to
the con0entions embodying them, for our Constitution has been deliberately general and extensi0e in its scope and is
not confined to the recognition of rules and principles of international law as contained in treaties to which our
go0ernment may ha0e been or shall be a signatory+
)+ id+F rights and obligations of a nation were not erased by assumption of full so0ereignty 4;=&T T< T4Y .5-
"D5;S& C4;>!S T&!4!T<F<4! C<>>;TT!-+ b Hhen the crimes charged against petitioner were allegedly
committed, the "hilippines was under the so0ereignty of the Dnited States, and thus we were e/ually bound together
with the Dnited Sates and with 9apan, to the rights and obligations contained in the treaties between the belligerent
countries+ These rights and obligations were not erased by our assumption of full so0ereignty+ ;f at right, on our own,
of trying and punishing those who committed crimes against our people+
*+ ;-+F ;-+F ;-+F b Har crimes committed against our people and our go0ernment while we are a Commonwealth, are
triable and punishable by our present 4epublic+
(+ >;A;T.4Y C<>>;SS;<5 =<?!45!- ,Y S"!C;.A A.H+ b >ilitary Commission is a special military tribunal go0erned
by a special law and not by the 4ules of Court which go0ern ordinary ci0il courts+
'8+ >;A;T.4Y C<>>;SS;<5F C<D5S!A .""!.4;5= ,!F<4! ;T 5<T 5!C!SS.4;AY . >!>,!4 <F T&! "&;A;"";5!
,.4+ b There is nothing in !xecuti0e <rder 5o+ 6* which re/uires that counsel appearing before said commission
must be attorneys /ualified to practice law in the "hilippines in accordance with the 4ules of Court+ ;n fact, it is
common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor
e0en possessed of legal training+
''+ ;-+F T4;.A <F H.4 C4;>!S ,!F<4! "&;A;"";5! C<D4TSF .AA<H.5C! <F .>!4;C.5 .TT<45!YS T<
4!"4!S!5T D5;T!- ST.T!S+ b The appointment of the two .merican attorneys is not 0iolati0e of our national
so0ereignty+ ;t is only fair and proper that the Dnited States, which has submitted the 0indication of crimes against
her go0ernment and her people to a tribunal of our nation, should be allowed representation in the trial of those 0ery
crimes+ ;f there has been any relin/uishment of so0ereignty, it has not been by our go0ernment by the Dnited States
=o0ernment which has yielded to us the trial and punishment of her enemies+ The least that we could do in the spirit
of comity is to allow them representation in said trials+
'1+ ;-+F ;-+F ;-+ b ;t is of common $nowledge that the Dnited States and its people ha0e been e/ually, if not more
greatly, aggrie0ed by the crimes with which petitioner stands charged before the >ilitary Commission+ ;t can be
considered a pri0ilege for our 4epublic that a leader nation should submit the 0indication of the honor of its citiBens
and its go0ernment to a military tribunal of our country+
'2+ ;-+F 9D4;S-;CT;<5F SD"4!>! C<D4T H;AA 5<T ;5T!4F!4! H;T& -D! "4<C!SS!S <F >;A;T.4Y C<>>;SS;<5+
b The >ilitary Commission ha0ing been con0ened by 0irtue of a 0alid law, with @urisdiction o0er the crimes charged
which fall under the pro0isions of !xecuti0e <rder 5o+ 6*, and ha0ing @urisdiction o0er the person of the petitioner by
ha0ing said petitioner in its custody, this court will not interfere with the due processes of such >ilitary Commission+
"er "!4F!CT<, ;., dissenting:chanrob'es 0irtual 'awlibrary
'7+ .TT<45!YS .T A.HF .A;!5S C.55<T "4.CT;C! A.H+ b ;t appearing that .ttys+ &ussey and "ort are aliens and
ha0e not been authoriBed by the Supreme Court to practice law, they cannot appear as prosecutors in a case pending
before the Har Crimes Commission+
':+ C<5ST;TDT;<5.A A.HF A!=;SA.T;?! "<H!4 ?!ST!- ;5 C<5=4!SSF !JC!"T;<5+ b Hhile there is no express
pro0ision in the fundamental law prohibiting the exercise of legislati0e power by agencies other than Congress, a
reading of the whole context of the Constitution would dispel any doubt as to the constitutional intent that the
legislati0e power is to be exercised exclusi0ely by Congress, sub@ect only to the 0eto power of the "resident, to his to
suspend the writ of habeas #or1us, to place any part of the "hilippines under martial law, to the rule3ma$ing power
expressly 0ested by the Constitution in the Supreme Court+
'6+ ;-+F ;-+F SC<"! <F "<H!4S <F -;FF!4!5T =<?!45>!5T.A -!".4T>!5TS+ b ,ecause the powers 0ested by
our Constitution to the se0eral departments of the go0ernment are in the nature of grants, not a recognition of pre3
existing powers, no department of the go0ernment may exercise any power or authority not expressly granted by the
Constitution or by law by 0irtue of express authority of the Constitution+
')+ ;-+F ;-+F "<H!4 <F "4!S;-!5T T< "4<>DA=.T! !J!CDT;?! <4-!4 -!F;5;5= .5- .AA<C.T;5=
9D4;S-;CT;<5 F<4 "4<S!CDT;<5 <F H.4 C4;>!S <5 >;A;T.4Y C<>>;SS;<5+ b The pro0ision in !xecuti0e <rder
5o+ 6* (series of '(7)) of the "resident of the "hilippines, that persons accused as war criminals shall be tried by
military commission, is clearly legislati0e in nature and intends to confer upon military commission @urisdiction to try
all persons charged with war crimes+ ,ut, the power to define and allocate @urisdiction for the prosecution of persons
accused of crimes is exclusi0ely 0ested by the Constitution in Congress+
'*+ ;-+F ;-+F "<H!4 T< !ST.,A;S& =<?!45>!5T <FF;C!+ b !xecuti0e <rder 5o+ establishes a 5ational Har Crimes
<fficeF but, the power to establish go0ernment offices is essentially legislati0e+
'(+ ;-+F 4DA!3>.%;5= "<H!4 <F SD"4!>! C<D4TF "4!S;-!5T &.S 5< "<H!4, >DC& A!SS -!A!=.T! SDC& .
"<H!4, T< "4<?;-! 4DA!S <F "4<C!-D4! F<4 C<5-DCT <F T4;.AS+ b !xecuti0e <rder 5o+ 6* pro0ides rules of
procedure for the conduct of trials before the Har Crimes <ffice+ This pro0ision on procedural sub@ect constitutes a
usurpation of the rule3ma$ing power 0ested by the Constitution in the Supreme Court+ ;t further authoriBes military
commissions to adopt additional rules of procedure+ ;f the "resident of the "hilippines cannot exercise the rule ma$ing
power 0ested by the Constitution in the Supreme Court, he cannot, with more reason, delegate that power to military
commissions+
18+ ;-+F A!=;SA.T;?! "<H!4 ?!ST!- ;5 C<5=4!SSF DSD4".T;<5 <F "<H!4 T< .""4<"4;.T! FD5-S+ b
!xecuti0e <rder 5o+ 6* appropriates funds for the expenses of the 5ational Har Crimes <ffice+ This constitutes
another usurpation of legislati0e power, as the power to 0ote appropriations belongs to Congress+
1'+ ;-+F !>!4=!5CY "<H!4S <F "4!S;-!5T D5-!4 C<>><5H!.AT& .CTS 5<S+ 688, 618 .5- 6)'+ b
Commonwealth .cts 5os+ 688, 618 and 6)', granting the "resident of the "hilippines emergency powers to
promulgate rules and regulations during national emergency has ceased to ha0e effect since the liberation of the
"hilippines, or at latest, upon the surrender of 9apan on September 1, '(7:+ The absurdity of the contention that
these emergency acts continued in effect e0en after the surrender of 9apan cannot be gainsaid+ <nly a few months
after liberation, and e0en before the surrender of 9apan, the Congress started to function normally+ To let the
hypothesis on continuance pre0ail will result in the existence of two distinct, separate and independent legislati0e
organs+ b the Congress and the "resident of the "hilippines+ Should there be any disagreement between Congress
and the "resident, a possibility that no one can dispute, the "resident may ta$e ad0antage of the long recess of
Congress (two3thirds of e0ery year) to repeal and o0errule legislati0e enactments of Congress, and may set up a
0eritable system of dictatorship, absolutely repugnant to the letter and spirit of the Constitution+
11+ ST.TDT<4Y C<5ST4DCT;<5F "4!SD>"T;<5 T&.T A!=;SA.T;?! ,<-Y -;- 5<T ;5T!5- T< ?;<A.T!
C<5ST;TDT;<5+ b ;t has ne0er been the purpose of the 5ational .ssembly to extend the delegation (embodied in
Commonwealth .cts 5os+ 688, 618 and 6)') beyond the emergency created by war, as to extent it farther would be
0iolate of the express pro0isions of the Constitution+ He are of the opinion that there is no doubt on this /uestionF
but, if there could still be any, the same should be resol0ed in fa0or of the presumption that the 5ational .ssembly did
not intend to 0iolate the fundamental law+
12+ C<5ST;TDT;<5.A A.HF -D! "4<C!SS .5- !#D.A "4<T!CT;<5 <F A.H+ b !xecuti0e <rder 5o+ 6* 0iolates the
fundamental guarantees of due process and e/ual protection of the law, because it permits the admission of many
$inds of e0idence by which no innocent person can afford to get ac/uittal, and by which it is impossible to determine
whether an accused is guilt or not beyond all reasonable doubt+
D E ! I # I O N
MORAN, C.J. :
Shigenori %uroda, formerly a Aieutenant3=eneral of the 9apanese ;mperial .rmy and Commanding =eneral of the
9apanese ;mperial Forces in the "hilippines during a period co0ering '(72 and '(77, who is now charged before a
>ilitary Commission con0ened by the Chief of Staff of the .rmed Forces of the "hilippines, with ha0ing unlawfully
disregarded and failed Cto discharge his duties as such commander to control the operations of members of his
command, permitting them to commit brutal atrocities and other high crimes against noncombatant ci0ilians and
prisoners of the ;mperial 9apanese Forces, in 0iolation of the laws and customs of warC b comes before this Court
see$ing to establish the illegality of !xecuti0e <rder 5o+ 6* of the "resident of the "hilippinesF to en@oin and prohibit
respondents >el0ille S+ &ussey and 4obert "ort from participating in the prosecution of petitioner^s case before the
>ilitary CommissionF and to permanently prohibit respondents from proceeding with the case of petitioner+
;n support of his case, petitioner tenders the following principal arguments:chanrob'es 0irtual 'aw library
First+ b CThat !xecuti0e <rder 5o+ 6* is illegal on the ground that it 0iolates not only the pro0isions of our
constitutional law but also our local laws, to say nothing of the fact (that) the "hilippines is not a signatory nor an
adherent to the &ague Con0ention on 4ules and 4egulations co0ering Aand Harfare and, therefore, petitioner is
charged of ^crimes^ not based on law, national and international+C &ence, petitioner argues b CThat in 0iew of the fact
that this commission has been empanelled by 0irtue of an unconstitutional law and an illegal order, this commission is
without @urisdiction to try herein petitioner+Ccralaw 0irtua'aw library
Second+ b That the participation in the prosecution of the case against petitioner before the Commission in behalf of
the Dnited States of .merica, of attorneys >el0ille &ussey and 4obert "ort, who are not attorneys authoriBed by the
Supreme Court to practice law in the "hilippines, is a diminution of our personality as an independent state, and their
appointments as prosecutors are a 0iolation of our Constitution for the reason that they are not /ualified to practice
law in the "hilippines+
Third+ b That .ttorneys &ussey and "ort ha0e no personality as prosecutors, the Dnited States not being a party in
interest in the case+
!xecuti0e <rder 5o+ 6*, establishing a 5ational Har Crimes <ffice and prescribing rules and regulations go0erning the
trial of accused war criminals, was issued by the "resident of the "hilippines on the 1(th day of 9uly, '(7)+ This Court
holds that this order is 0alid and constitutional+ .rticle 1 of our Constitution pro0ides in its section 2, that b
CThe "hilippines renounces war as an instrument of national policy, and adopts the generally accepted principles of
international law as part of the law of the nation+Ccralaw 0irtua'awlibrary
;n accordance with the generally accepted principles of international law of the present day, including the &ague
Con0ention, the =ene0a Con0ention and significant precedents of international @urisprudence established by the
Dnited 5ations, all those persons, military or ci0ilian, who ha0e been guilty of planning, preparing or waging a war of
aggression and of the commission of crimes and offenses conse/uential and incidental thereto, in 0iolation of the laws
and customs of war, of humanity and ci0iliBation, are held accountable therefor+ Conse/uently, in the promulgation
and enforcement of !xecuti0e <rder 5o+ 6*, the "resident of the "hilippines has acted in conformity with the generally
accepted principles and policies of international law which are part of our Constitution+
The promulgation of said executi0e order is an exercise by the "resident of his powers as Commander in Chief of all
our armed forces, as upheld by this Court in the case of Yamashita 0+ Styer A3'1(, 71 <ff+ =aB+, 6:7) ' when we said
b
CHar is not ended simply because hostilities ha0e ceased+ .fter cessation of armed hostilities, incidents of war may
remain pending which should be disposed of as in time of war+^.n important incident to a conduct of war is the
adoption of measures by the military command not only to repel and defeat the enemies but to seiBe and sub@ect to
disciplinary measures those enemies who in their attempt to thwart or impede our military effort ha0e 0iolated the law
of war+^ (!x parte #uirin, 2') D+ S+, 'F 62 Sup+ Ct+, 1+) ;ndeed, the power to create a military commission for the trial
and punishment of war criminals is an aspect of waging war+ .nd, in the language of a writer, a military commission
^has @urisdiction so long as a technical state of war continues+ This includes the period of an armistice, or military
occupation, up to the effecti0e date of a treaty of peace, and may extend beyond, by treaty agreement+^ (Cowls, Trial
of Har Criminals by >ilitary Tribunals, .merican ,ar .ssociation 9ournal, 9une, '(77+)C
Conse/uently, the "resident as Commander in Chief is fully empowered to consummate this unfinished aspect of war,
namely, the trial and punishment of war criminals, through the issuance and enforcement of !xecuti0e <rder 5o+ 6*+
"etitioner argues that respondent >ilitary Commission has no @urisdiction to try petitioner for acts committed in
0iolation of the &ague Con0ention and the =ene0a Con0ention because the "hilippines is not a signatory to the first
and signed the second only in '(7)+ ;t cannot be denied that the rules and regulations of the &ague and =ene0a
con0entions form part of and are wholly based on the generally accepted principles of international law+ ;n fact, these
rules and principles were accepted by the two belligerent nations, the Dnited States and 9apan, who were signatories
to the two Con0entions+ Such rules and principles, therefore, form part of the law of our nation e0en if the "hilippines
was not a signatory to the con0entions embodying them, for our Constitution has been deliberately general and
extensi0e in its scope and is not confined to the recognition of rules and principles of international law as contained in
treaties to which our go0ernment may ha0e been or shall be a signatory+
Furthermore, when the crimes charged against petitioner were allegedly committed, the "hilippines was under the
so0ereignty of the Dnited States, and thus we were e/ually bound together with the Dnited States and with 9apan, to
the rights and obligations contained in the treaties between the belligerent countries+ These rights and obligations
were not erased by our assumption of full so0ereignty+ ;f at all, our emergence as a free state entitles us to enforce
the right, on our own, of trying and punishing those who committed crimes against our people+ ;n this connection, it is
well to remember what we ha0e said in the case of Aaurel 0+ >isa ()6 "hil+, 2)1):@gc:chanrobles+com+ph
C+ + + The change of our form of go0ernment from Commonwealth to 4epublic does not affect the prosecution of those
charged with the crime of treason committed during the Commonwealth, because it is an offense against the same
go0ernment and the same so0ereign people + + +Ccralaw 0irtua'awlibrary
,y the same to$en, war crimes committed against our people and our go0ernment while we were a Commonwealth,
are triable and punishable by our present 4epublic+
"etitioner challenges the participation of two .merican attorneys, namely, >el0ille S+ &ussey and 4obert "ort, in the
prosecution of his case, on the ground that said attorneys are not /ualified to practice law in the "hilippines in
accordance with our 4ules of Court and the appointment of said attorneys as prosecutors is 0iolati0e of our national
so0ereignty+
;n the first place, respondent >ilitary Commission is a special military tribunal go0erned by a special law and not by
the 4ules of Court which go0ern ordinary ci0il courts+ ;t has already been shown that !xecuti0e <rder 5o+ 6* which
pro0ides for the organiBation of such military commissions is a 0alid and constitutional law+ There is nothing in said
executi0e order which re/uires that counsel appearing before said commissions must be attorneys /ualified to practice
law in the "hilippines in accordance with the 4ules of Court+ ;n fact, it is common in military tribunals that counsel for
the parties are usually military personnel who are neither attorneys nor e0en possessed of legal training+
Secondly, the appointment of the two .merican attorneys is not 0iolati0e of our national so0ereignty+ ;t is only fair
and proper that the Dnited States, which has submitted the 0indication of crimes against her go0ernment and her
people to a tribunal of our nation, should be allowed representation in the trial of those 0ery crimes+ ;f there has been
any relin/uishment of so0ereignty, it has not been by our go0ernment but by the Dnited States =o0ernment which
has yielded to us the trial and punishment of her enemies+ The least that we could do in the spirit of comity is to allow
them representation in said trials+
.lleging that the Dnited States is not a party in interest in the case, petitioner challenges the personality of attorneys
&ussey and "ort as prosecutors+ ;t is of common $nowledge that the Dnited States and its people ha0e been e/ually,
if not more greatly, aggrie0ed by the crimes with which petitioner stands charged before the >ilitary Commission+ ;t
can be considered a pri0ilege for our 4epublic that a leader nation should submit the 0indication of the honor of its
citiBens and its go0ernment to a military tribunal of our country+
The >ilitary Commission ha0ing been con0ened by 0irtue of a 0alid law, with @urisdiction o0er the crimes charged
which fall under the pro0isions of !xecuti0e <rder 5o+ 6*, and ha0ing @urisdiction o0er the person of the petitioner by
ha0ing said petitioner in its custody, this Court will not interfere with the due processes of such >ilitary Commission+
"aras, Feria, "ablo, ,engBon, ,riones, Tuason, >ontemayor and 4eyes, ;;., concur+
#&8a%a.& O8(n(,n'
"!4F!CT<+ ;., dissenting:chanrob'es 0irtual 'awlibrary
. military commission was empaneled on -ecember ', '(7*, to try At+ =en+ Shigenori %uroda for 0iolation of the laws
and customs of land warfare+
>el0ille S+ &ussey and 4obert "ort, .merican citiBens and not authoriBed by the Supreme Court to practice law, were
appointed prosecutors representing the .merican C;C in the trial of the case+
The commission was empaneled under the authority of !xecuti0e <rder 5o+ 6* of the "resident of the "hilippines, the
0alidity of which is challenged by petitioner on constitutional grounds+ "etitioner has also challenged the personality of
.ttorneys &ussey and "ort to appear as prosecutors before the commission+
The charges against petitioner has been filed since 9une 16, '(7*, in the name of the "eople of the "hilippines as
accusers+
He will consider briefly the challenge against the appearance of .ttorneys &ussey and "ort+ ;t appearing that they are
aliens and ha0e not been authoriBed by the Supreme Court to practice law, there could not be any /uestion that said
persons cannot appear as prosecutors in petitioner^s case, as with such appearance they would be practicing law
against the law+
Said 0iolation 0anishes, howe0er, into insignificance at the side of the momentous /uestions in0ol0ed in the challenge
against the 0alidity of !xecuti0e <rder 5o+ 6*+ Said order is challenged on se0eral constitutional grounds+ To get a
clear idea of the /uestions raised, it is necessary to read the whole context of said order which is reproduced as
follows:@gc:chanrobles+com+ph
C!J!CDT;?! <4-!4 5o+ 6*
C!ST.,A;S&;5= . 5.T;<5.A H.4 C4;>!S <FF;C! .5- "4!SC4;,;5= 4DA!S .5- 4!=DA.T;<5S =<?!45;5= T&!
T4;.A <F .CCDS!- H.4 C4;>;5.AS+
C;, >anuel 4oxas, "resident of the "hilippines, by 0irtue of the powers 0ested in me by the Constitution and laws of
the "hilippines, do hereby establish a 5ational Har Crimes <ffice charged with the responsibility of accomplishing the
speedy trial of all 9apanese accused of war crimes committed in the "hilippines, and prescribe the rules and
regulations go0erning such trial+
CThe 5ational Har Crimes <ffice is established within the <ffice of the 9udge .d0ocate =eneral of the .rmy of the
"hilippines and shall function under the direction, super0ision and control of the 9udge .d0ocate =eneral+ ;t shall
proceed to collect from all a0ailable sources e0idence of war crimes committed in the "hilippines from the
commencement of hostilities by 9apan in -ecember, '(7', maintain a record thereof, and bring about the prompt trial
of the accused+
CThe 5ational Har Crimes <ffice shall maintain direct liaison with the Aegal Section, =eneral &ead/uarters, Supreme
Commander for the .llied "owers, and shall exchange with the said <ffice information and e0idence of war crimes+
CThe following rules and regulations shall go0ern the trial of persons accused as war criminals:@gc:chanrobles+com+ph
C;+ !ST.,A;S&>!5T <F >;A;T.4Y C<>>;SS;<5S
C(a) =eneral+ b "ersons accused as war criminals shall be tried by military commissions to be con0ened by, or under
the authority of, the "resident of the "hilippines+
C;;+ 9D4;S-;CT;<5
C(a) <0er "ersons+ b The military commissions appointed hereunder shall ha0e @urisdiction o0er all persons charged
with war crimes who are in the custody of the con0ening authority at the time of the trial+
C(b) <0er <ffenses+ b The military commissions established hereunder shall ha0e @urisdiction o0er all offenses
including, but not limited to, the following:@gc:chanrobles+com+ph
C(') The planning, preparation, initiation or waging of a war of aggression or a war in 0iolation of international
treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of
the foregoing+
C(1) ?iolations of the laws or customs of war+ Such 0iolations shall include, but not be limited to, murder, ill3treatment
or deportation to sla0e labor or for any other purpose of ci0ilian population of or in occupied territoryF murder or ill3
treatment of prisoners of war or internees or persons on the seas or elsewhereF improper treatment of hostagesF
plunder of public or pri0ate propertyF wanton destruction of cities, towns or 0illagesF or de0astation not @ustified by
military necessity+
C(2) >urder, extermination, ensla0ement, deportation and other inhuman acts committed against ci0ilian populations
before or during the war, or persecutions on political, racial or religious grounds in execution of, or in connection with,
any crime defined herein, whether or not in 0iolation of the local laws+
C;;;+ >!>,!4S&;" <F C<>>;SS;<5S
C(a) .ppointment+ b The members of each military commission shall be appointed by the "resident of the "hilippines,
or under authority delegated by him+ .lternates may be appointed by the con0ening authority+ Such alternates shall
attend all sessions of the commission, and in case of illness or other incapacity of any principal member, an alternate
shall ta$e the place of that member+ .ny 0acancy among the members or alternates, occurring after a trial has begun,
may be filed by the con0ening authority, but the substance of all proceedings had and e0idence ta$en in that case
shall be made $nown to the said new member or alternate+ This fact shall be announced by the president of the
commission in open court+
C(b) 5umber of >embers+ b !ach commission shall consist of not less than three (2) members+
C(c) #ualifications+ b The con0ening authority shall appoint to the commission persons whom he determines to be
competent to perform the duties in0ol0ed and not dis/ualified by personal interest or pre@udice, pro0ided that no
person shall be appointed to hear a case in which he personally in0estigated, or wherein his presence as a witness is
re/uired+ <ne specially /ualified member shall be designated as the law member whose ruling is final in so far as
concerns the commission on an ob@ection to the admissibility of e0idence offered during the trial+
C(d) ?oting+ b !xcept as to the admissibility of e0idence, all rulings and findings of the Commission shall be by
ma@ority 0ote, except that con0iction and sentence shall be by the affirmati0e 0ote of not less than two3thirds (12) of
the members present+
C(e) "residing >ember+ b ;n the e0ent that the con0ening authority does not name one of the members as the
presiding member, the senior officer among the members of the Commission present shall preside+
C;?+ "4<S!CDT<4S
C(a) .ppointment+ b The con0ening authority shall designate one or more persons to conduct the prosecution before
each commission+
C(b) -uties+ b The duties of the prosecutors are:@gc:chanrobles+com+ph
C(') To prepare and present charges and specifications for reference to a commission+
C(1) To prepare cases for trial and to conduct the prosecution before the commission of all cases referred for trial+
?+ "<H!4S .5- "4<C!-D4! <F C<>>;SS;<5S
C(a) Conduct of the Trial+ b . Commission shall:@gc:chanrobles+com+ph
C(') Confine each trial strictly to a fair and expeditious hearing on the issues raised by the charges, excluding
irrele0ant issues or e0idence and pre0enting any unnecessary delay or interference+
C(1) -eal summarily with any contumacy or contempt, imposing any appropriate punishment therefor+
C(2) &old public sessions except when otherwise decided by the commission+
C(7) &old each session at such time and place as it shall determine, or as may be directed by the con0ening
authority+
C(b) 4ights of the .ccused+ b The accused shall be entitled:@gc:chanrobles+com+ph
C(') To ha0e in ad0ance of the trial a copy of the charges and specifications clearly worded so as to apprise the
accused of each offense charged+
C(1) To be represented, prior to and during trial, by counsel appointed by the con0ening authority or counsel of his
own choice, or to conduct his own defense+
C(2) To testify in his own behalf and ha0e his counsel present rele0ant e0idence at the trial in support of his defense,
and cross3 examine each ad0erse witness who personally appears before the commission+
C(7) To ha0e the substance of the charges and specifications, the proceedings and any documentary e0idence
translated, when he is unable otherwise to understand them+
C(c) Hitnesses+ b The Commission shall ha0e power:@gc:chanrobles+com+ph
C(') To summon witnesses and re/uire their attendance and testimonyF to administer oaths or affirmations to
witnesses and other persons and to /uestion witnesses+
C(1) To re/uire the production of documents and other e0identiary material+
C(2) To delegate to the "rosecutors appointed by the con0ening authority the powers and duties set forth in (') and
(1) abo0e+
C(7) To ha0e e0idence ta$en by a special commissioner appointed by the commission+
C(d) !0idence+
C(') The commission shall admit such e0idence as in its opinion shall be of assistance in pro0ing or dispro0ing the
charge, or such as in the commission^s opinion would ha0e probati0e 0alue in the mind of a reasonable man+ The
commission shall apply the rules of e0idence and pleading set forth herein with the greatest liberality to achie0e
expeditious procedure+ ;n particular, and without limiting in any way the scope of the foregoing general rules, the
following e0idence may be admitted:@gc:chanrobles+com+ph
C(a) .ny document, irrespecti0e of its classification, which appears to the commission to ha0e been signed or issued
by any officer, department, agency or member of the armed forces of any =o0ernment without proof of the signature
or of the issuance of the document+
C(b) .ny report which appears to the commission to ha0e been signed or issued by the ;nternational 4ed Cross or a
member thereof, or by a doctor of medicine or a member of any medical ser0ice personnel, or by any in0estigator or
intelligence officer, or by any other person whom the commission considers as possessing $nowledge of the matters
contained in the report+
C(c) .ffida0its, depositions or other signed statements+
C(d) .ny diary, letter or other document, including sworn or unsworn statements, appearing to the commission to
contain information relating to the charge+
C(e) . copy of any document or other secondary e0idence of the contents, if the original is not immediately a0ailable+
C(1) The commission shall ta$e @udicial notice of facts of common $nowledge, official go0ernment documents of any
nation, and the proceedings, records and findings of military or other agencies of any of the Dnited 5ations+
C(2) . commission may re/uire the prosecution and the defense to ma$e a preliminary offer of proof, whereupon the
commission may rule in ad0ance on the admissibility of such e0idence+
C(7) The official position of the accused shall not absol0e him from responsibility, nor be considered in mitigation of
punishment+ Further, action pursuant to an order of the accused^s superior, or of his =o0ernment, shall not constitute
a defense, but may be considered in mitigation of punishment if the commission determines that @ustice so re/uires+
C(:) .ll purported confessions or statements of the accused shall be admissible in e0idence without any showing that
they were 0oluntarily made+ ;f it is shown that such confession or statement was procured by means which the
commission belie0es to ha0e been of such a character that they may ha0e caused the accused to ma$e a false
statement, the commission may stri$e out or disregard any such portion thereof as was so procured+
C(e) Trial "rocedure+ b The proceedings of each trial shall be conducted substantially as follows, unless modified by
the commission to suit the particular circumstances:@gc:chanrobles+com+ph
C(') !ach charge and specification shall be read, or its substance stated, in open court+
C(1) The presiding member shall as$ each accused whether he pleads ^=uilty^ or ^5ot guilty+^
C(2) The prosecution shall ma$e its opening statement+
C(7) The presiding member may, at this or any other time, re/uire the prosecutor to state what e0idence he proposes
to submit to the commission and the commission thereupon may rule upon the admissibility of such e0idence+
C(:) The witnesses and other e0idence for the prosecution shall be heard or presented+ .t the close of the case for the
prosecution, the commission may, on motion of the defense for a finding of not guilty, consider and rule whether the
e0idence before the commission supports the charges against the accused+ The commission may defer action on any
such motion and permit or re/uire the prosecution to reopen its case and produce any further a0ailable e0idence+
C(6) The defense may ma$e an opening statement prior to presenting its case+ The presiding member may, at this or
any other time, re/uire the defense to state what e0idence it proposes to submit to the commission, where upon the
commission may rule upon the admissibility of such e0idence+
C()) The witnesses and other e0idence for the defense shall be heard or presented+ Thereafter, the prosecution and
defense may introduce such e0idence in rebuttal as the commission may rule as being admissible+
C(*) The defense, and thereafter the prosecution, shall address the commission+
C(() The commission thereafter shall consider the case in closed session and unless otherwise directed by the
con0ening authority, announce in open court its @udgment and sentence, if any+ The commission may state the
reasons on which @udgment is based+
C(f) 4ecord of "roceedings+ b !ach commission shall ma$e a separate record of its proceedings in the trial of each
case brought before it+ The record shall be prepared by the prosecutor under the direction of the commission and
submitted to the defense counsel+ The commission shall be responsible for its accuracy+ Such recordF certified by the
presiding member of the commission or his successor, shall be deli0ered to the con0ening authority as soon as
possible after the trial+
C(g) Sentence+ b The commission may sentence an accused, upon con0iction, to death by hanging or shooting,
imprisonment for life or for any less term, fine, or such other punishment as the commission shall determine to be
proper+
C(h) .ppro0al of Sentence+ b 5o sentence of a military commission shall be carried into effect until appro0ed by the
Chief of Staff: "ro0ided, That no sentence of death or life imprisonment shall be carried into execution until confirmed
by the "resident of the "hilippines+ For the purpose of his re0iew, the Chief of Staff shall create a ,oard of 4e0iew to
be composed of not more than three officers none of whom shall be on duty with or assigned to the 9udge .d0ocate
=eneral^s <ffice+ The Chief of Staff shall ha0e the authority to appro0e, mitigate, remit in whole or in part, commute,
suspend, reduce or otherwise alter the sentence imposed, or (without pre@udice to the accused) remand the case for
rehearing before a new military commissionF but he shall not ha0e authority to increase the se0erity of the sentence+
!xcept as herein otherwise pro0ided, the @udgment and sentence of a commission shall be final and not sub@ect to
re0iew by any other tribunal+
C?;+ 4DA!3>.%;5= "<H!4
CSupplementary 4ules and Forms+ b !ach commission shall adopt rules and forms to go0ern its procedure, not
inconsistent with the pro0isions of this <rder, or such rules and forms as may be prescribed by the con0ening
authority or by the "resident of the "hilippines+
C?;;+ The amount of se0en hundred thousand pesos is hereby set aside out of the appropriations for the .rmy of the
"hilippines for use by the 5ational Har Crimes <ffice in the accomplishment of its mission as hereinabo0e set forth,
and shall be expended in accordance with the recommendations of the 9udge .d0ocate =eneral as appro0ed by the
"resident+ The buildings, textures, installations, messing, and billeting e/uipment and other property heretofore used
by the Aegal Section, >anila ,ranch, of the =eneral &ead/uarters, Supreme Commander for the .llied "owers, which
will be turned o0er by the Dnited States .rmy to the "hilippine =o0ernment through the Foreign Ai/uidation
Commission and the Surplus "roperty Commission are hereby specifically reser0ed for use of the 5ational Har Crimes
<ffice+
C!xecuti0e <rder 5o+ 67, dated .ugust '6, '(78, is hereby repealed+
C-one in the City of >anila, this 1(th day of 9uly, in the year of <ur Aord, nineteen hundred and forty3se0en, and of
the ;ndependence of the "hilippines, the second+
C>.5D!A 4<J.S
C"resident of the "hilippines
C,y the "resident:@gc:chanrobles+com+ph
C!>;A;< .,!AA<
CChief of the !xecuti0e <fficeC
!J!CDT;?! A!=;SA.T;<5
!xecuti0e <rder 5o+ 6* is a 0eritable piece of legislati0e measure, without the benefit of congressional enactment+
The first /uestion that is thrust at our face, spearheading a group of other no less important /uestions, is whether or
not the "resident of the "hilippines may exercise the legislati0e power expressly 0ested in Congress by the
Constitution+
The Constitution pro0ides:@gc:chanrobles+com+ph
CThe Aegislati0e powers shall be 0ested in a Congress of the "hilippines, which shall consist of a Senate and a &ouse
of 4epresentati0es+C (Section ', .rticle ?;+)
Hhile there is no express pro0ision in the fundamental law prohibiting the exercise of legislati0e power by agencies
other than Congress, a reading of the whole context of the Constitution would dispel any doubt as to the constitutional
intent that the legislati0e power is to be exercised exclusi0ely by Congress, sub@ect only to the 0eto power of the
"resident of the "hilippines, to the specific pro0isions which allow the "resident of the "hilippines to suspend the
pri0ileges of the writ of habeas #or1us and to place any part of the "hilippines under martial law, and to the rule3
ma$ing power expressly 0ested by the Constitution in the Supreme Court+
There cannot be any /uestion that the members of the Constitutional Con0ention were belie0ers in the tripartite
system of go0ernment as originally enunciated by .ristotle, further elaborated by >ontes/uieu and accepted and
practiced by modern democracies, especially the Dnited States of .merica, whose Constitution, after which ours has
been patterned, has allocated the three powers of go0ernment b legislati0e, executi0e, @udicial b to distinct and
separate departments of go0ernment+
,ecause the powers 0ested by our Constitution to the se0eral departments of the go0ernment are in the nature of
grants, not a recognition of pre3existing powers, no department of go0ernment may exercise any power or authority
not expressly granted by the Constitution or by law by 0irtue of express authority of the Constitution+
!xecuti0e <rder 5o+ 6* establishes a 5ational Har Crimes <ffice, and the power to establish go0ernment office is
essentially legislati0e+
The order pro0ides that persons accused as war criminals shall be tried by military commissions+ Hhether such a
pro0ision is substanti0e or ad@ecti0e, it is clearly legislati0e in nature+ ;t confers upon military commissions @urisdiction
to try all persons charged with war crimes+ The power to define and allocate @urisdiction for the prosecution of persons
accused of any crime is exclusi0ely 0ested by the Constitution in Congress+
;t pro0ides rules of procedure for the conduct of trials+ This pro0ision on procedural sub@ect constitutes a usurpation of
the rule3 ma$ing power 0ested by the Constitution in the Supreme Court+
;t authoriBes military commissions to adopt additional rules of procedure+ ;f the "resident of the "hilippines cannot
exercise the rule3ma$ing power 0ested by the Constitution in the Supreme Court, he cannot, with more reason,
delegate that power to military commissions+
;t appropriates the sum of ")88,888 for the expenses of the 5ational Har Crimes <ffice established by the said
!xecuti0e <rder 5o+ 6*+ This constitutes another usurpation of legislati0e power as the power to 0ote appropriations
belongs to Congress+
!xecuti0e <rder 5o+ 6*, is, therefore, null and 0oid, because, through it, the "resident of the "hilippines usurped
powers expressly 0ested by the Constitution in Congress and in the Supreme Court+
Challenged to show the constitutional or legal authority under which the "resident of the "hilippines issued !xecuti0e
<rder 5o+ 6*, respondents could not gi0e any definite answer+ They attempted, howe0er, to suggest that the
"resident of the "hilippines issued !xecuti0e <rder 5o+ 6* under the emergency powers granted to him by
Commonwealth .ct 5o+ 688, as amended by Commonwealth .ct 5o+ 618, and Commonwealth .ct 5o+ 6)', both of
which are transcribed below:@gc:chanrobles+com+ph
CC<>><5H!.AT& .CT 5o+ 688
C.5 .CT -!CA.4;5= . ST.T! <F !>!4=!5CY .5- .DT&<4;];5= T&! "4!S;-!5T T< "4<>DA=.T! 4DA!S .5-
4!=DA.T;<5S T< S.F!=D.4- T&! ;5T!=4;TY <F T&! "&;A;"";5!S .5- T< ;5SD4! T&! T4.5#D;AA;TY <F ;TS
;5&.,;T.5TS+
C,e it enacted by the 5ational .ssembly of the "hilippines:@gc:chanrobles+com+ph
CS!CT;<5 '+ The existence of war in many parts of the world has created a national emergency which ma$es it
necessary to in0est the "resident of the "hilippines with extraordinary powers in order to safeguard the integrity of
the "hilippines and to insure the tran/uillity of its inhabitants, by suppressing espionage, lawlessness, and all
sub0ersi0e acti0ities, by pre0enting or relie0ing unemployment, by insuring to the people ade/uate shelter and
clothing and sufficient food supply, and by pro0iding means for the speedy e0acuation of the ci0ilian population, the
establishment of an air protecti0e ser0ice, and the organiBation of 0olunteer guard units, and to adopt such other
measures as he may deem necessary for the interest of the public+ To carry out this policy the "resident is authoriBed
to promulgate rules and regulations which shall ha0e the force and effect of law until the date of ad@ournment of the
next regular session of the First Congress of the "hilippines, unless sooner amended or repealed by the Congress of
the "hilippines+ Such rules and regulations may embrace the following ob@ects: (') to suppress espionage and other
sub0ersi0e acti0itiesF (1) to re/uire all able3 bodied citiBens (a) when not engaged in any lawful occupation, to engage
in farming or other producti0e acti0ities or (b) to perform such ser0ices as may be necessary in the public interestF (2)
to ta$e o0er farm lands in order to pre0ent failure or shortage of crops and a0ert hunger and destitutionF (7) to ta$e
o0er industrial establishments in order to insure ade/uate production, controlling wages and profits thereinF (:) to
prohibit loc$outs and stri$es whene0er necessary to pre0ent the unwarranted suspension of wor$ in producti0e
enterprises or in the interest of national securityF (6) to regulate the normal hours of wor$ for wage3earning and
salaried employees in industrial or business underta$ings of all $indsF ()) to insure an e0en distribution of labor
among the producti0e enterprisesF (*) to commander ships and other means of transportation in order to maintain, as
much as possible, ade/uate and continued transportation facilitiesF (() to re/uisition and ta$e o0er any public ser0ice
or enterprise for use or operation by the =o0ernmentF ('8) to regulate rents and the prices of articles or commodities
of prime necessity, both imported and locally produced or manufacturedF and ('') to pre0ent, locally or generally,
scarcity, monopoliBation, hoarding, in@urious speculations, and pri0ate controls affecting the supply, distribution, and
mo0ement of foods, clothing, fuel, fertiliBers, chemicals, building materials, implements, machinery, and e/uipment
re/uired in agriculture and industry, with power to re/uisition these commodities sub@ect to the payment of @ust
compensation+ (.s amended by Com+ .ct 5o+ 618+)
CS!C+ 1+ For the purpose of administering this .ct and carrying out its ob@ecti0es, the "resident may designate any
officer, without additional compensation, or any department, bureau, office, or instrumentality of the 5ational
=o0ernment+
CS!C+ 2+ .ny person, firm, or corporation found guilty of the 0iolation of any pro0ision of this .ct or of any of the rules
or regulations promulgated by the "resident under the authority of section one of this .ct shall be punished by
imprisonment of not more than ten years or by a fine of not more than ten thousand pesos, or by both+ ;f such
0iolation is committed by a firm or corporation, the manager, managing director, or person charged with the
management of the business of such firm, or corporation shall be criminally responsible therefor+
CS!C+ 7+ The "resident shall report to the 5ational .ssembly within the first ten days from the date of the opening of
its next regular session whate0er action has been ta$en by him under the authority herein granted+
CS!C+ :+ To carry out the purposes of this .ct, the "resident is authoriBed to spend such amounts as may be
necessary from the sum appropriated under section fi0e of Commonwealth .ct 5umbered Four hundred and ninety3
eight+
CS!C+ 6+ ;f any pro0ision of this .ct shall be declared by any court of competent @urisdiction to be unconstitutional and
0oid, such declaration shall not in0alidate the remainder of this .ct+
CS!C+ )+ This .ct shall ta$e effect upon its appro0al+
C.ppro0ed, .ugust '(, '(78+Ccralaw 0irtua'awlibrary
CC<>><5H!.AT& .CT 5o+ 6)'
C.5 .CT -!CA.4;5= . ST.T! <F T<T.A !>!4=!5CY .S . 4!SDAT <F H.4 ;5?<A?;5= T&! "&;A;"";5!S .5-
.DT&<4;];5= T&! "4!S;-!5T T< "4<>DA=.T! 4DA!S .5- 4!=DA.T;<5S T< >!!T SDC& !>!4=!5CY+
C,e it enacted by the 5ational .ssembly of the "hilippines:@gc:chanrobles+com+ph
CS!CT;<5 '+ The existence of war between the Dnited States and other countries of !urope and .sia, which in0ol0es
the "hilippines, ma$es it necessary to in0est the "resident with extraordinary powers in order to meet the resulting
emergency+
CS!C+ 1+ "ursuant to the pro0isions of .rticle ?;, section '6, of the Constitution, the "resident is hereby authoriBed,
during the existence of the emergency, to promulgate such rules and regulations as he may deem necessary to carry
out the national policy declared in section ' hereof+ .ccordingly, he is, among other things, empowered (a) to transfer
the seat of the =o0ernment or any of its subdi0isions, branches, departments, offices, agencies or instrumentalitiesF
(b) to reorganiBe the =o0ernment of the Commonwealth including the determination of the order of precedence of the
heads of the !xecuti0e -epartmentsF (c) to create new subdi0isions, branches, departments, offices, agencies or
instrumentalities of go0ernment and to abolish any of those already existingF (d) to continue in force laws and
appropriations which would lapse or otherwise become inoperati0e, and to modify or suspend the operation or
application of those of an administrati0e characterF (e) to impose new taxes or to increase, reduce, suspend, or
abolish those in existenceF (f) to raise funds through the issuance of bonds or otherwise, and to authoriBe the
expenditure of the proceeds thereofF (g) to authoriBe the 5ational, pro0incial, city or municipal go0ernments to incur
in o0erdrafts for purposes that he may appro0eF (h) to declare the suspension of the collection of credits or the
payment of debtsF and (i) to exercise such other powers as he may deem necessary to enable the =o0ernment to
fulfill its responsibilities and to maintain and enforce its authority+
CS!C+ 2+ The "resident of the "hilippines shall as soon as practicable upon the con0ening of the Congress of the
"hilippines report thereto all the rules and regulations promulgated by him under the powers herein granted+
CS!C+ 7+ This .ct shall ta$e effect upon its appro0al, and the rules and regulations promulgated hereunder shall be in
force and effect until the Congress of the "hilippines shall otherwise pro0ide+
C.ppro0ed, -ecember '6, '(7'+Ccralaw 0irtua'awlibrary
The abo0e .cts cannot 0alidly be in0o$ed, because they ceased to ha0e any effect much before !xecuti0e <rder 5o+
6* was issued on 9uly 1(, '(7)+ Said .cts had elapsed upon the liberation of the "hilippines from the 9apanese forces
or, at the latest, when the surrender of 9apan was signed in To$yo on September 1, '(7:+
Hhen both .cts were enacted by the Second 5ational .ssembly, we happened to ha0e ta$en direct part in their
consideration and passage, not only as one of the members of said legislati0e body but as chairman of the Committee
on Third 4eading, popularly $nown as the CAittle Senate+C He are, therefore, in a position to state that said measures
were enacted by the Second 5ational .ssembly for the purpose of facing the emergency of an impending war and of
the "acific Har that finally bro$e out with the attac$ of "earl &arbor on -ecember ), '(7'+ He appro0ed said
extraordinary measures, by which, under the exceptional circumstances then pre0ailing, legislati0e powers were
delegated to the "resident of the "hilippines, by 0irtue of the following pro0isions of the Constitution:@gc:chanrobles+com+ph
C;n times of war or other national emergency, the Congress may by law authoriBe the "resident, for a limited period
and sub@ect to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared
national policy+C (.rticle ?;, section 16+)
;t has ne0er been the purpose of the 5ational .ssembly to extend the delegation beyond the emergence created by
the war, as to extend it farther would be 0iolati0e of the express pro0isions of the Constitution+ He are of the opinion
that there is no doubt on this /uestionF but if there could still be any, the same should be resol0ed in fa0or of the
presumption that the 5ational .ssembly did not intend to 0iolate the fundamental law+
The absurdity of the contention that the emergency .cts continued in effect e0en after the surrender of 9apan can not
be gainsaid+ <nly a few months after liberation and e0en before the surrender of 9apan, or since the middle of '(7:,
the Congress started to function normally+ ;n the hypothesis that the contention can pre0ail, then, since '(7:, that is,
four years ago, e0en after the Commonwealth was already replaced by the 4epublic of the "hilippines with the
proclamation of our ;ndependence, two distinct, separate and independent legislati0e organs, b Congress and the
"resident of the "hilippines b would ha0e been and would continue enacting laws, the former to enact laws of e0ery
nature including those of emergent character, and the latter to enact laws, in the form of executi0e orders, under the
so3called emergency powers+ The situation would be pregnant with dangers to peace and order, to the rights and
liberties of the people, and to "hilippine democracy+
Should there be any disagreement between Congress and the "resident of the "hilippines, a possibility that no one
can dispute, the "resident of the "hilippines may ta$e ad0antage of the long recess of Congress (two3thirds of e0ery
year) to repeal and o0errule legislati0e enactments of Congress, and may set up a 0eritable system of dictatorship,
absolutely repugnant to the letter and spirit of the Constitution+
!xecuti0e <rder 5o+ 6* is e/ually offensi0e to the Constitution because it 0iolates the fundamental guarantees of the
due process and e/ual protection of the law+ ;t is especially so, because it permits the admission of many $inds of
e0idence by which no innocent person can afford to get ac/uittal, and by which it is impossible to determine whether
an accused is guilty or not beyond all reasonable doubt+
The rules of e0idence adopted in !xecuti0e <rder 5o+ 6* are a reproduction of the regulations go0erning the trial of
twel0e criminals, issued by =eneral -ouglas >ac.rthur, Commander in Chief of the Dnited States .rmed Forces in
Hestern "acific, for the purpose of trying, among others, =enerals Yamashita and &omma+ Hhat we said in our
concurring and dissenting opinion to the decision promulgated on -ecember '(, '(7:, in the Yamashita case, A3'1(,
' and in our concurring and dissenting opinion to the resolution of 9anuary 12, '(76, in disposing the &omma case, A3
177, 1 are perfectly applicable to the offensi0e rules of e0idence embodied in !xecuti0e <rder 5o+ 6*+ Said rules of
e0idence are repugnant to conscience as under them no @ustice can be expected+
For all the foregoing, conformably with our position in the Yamashita and &omma cases, we 0ote to declare !xecuti0e
<rder 5o+ 6* null and 0oid and to grant the petition+
SUPREME COURT OF THE UNITED STATES
SALIM AHMED HAMDAN, PETITIONER v. DONALD
H. RUMSFELD, SECRETARY OF DEFENSE, et al.
June 29, 2006
on writ of certiorari to the united states court of appeas for the district of cou!"ia
circuit
Jut!"e Ste#en ann$un"e% t&e 'u%()ent $* t&e C$u+t an% %el!#e+e% t&e $,!n!$n $* t&e
C$u+t -!t& +e,e"t t$ Pa+t I t&+$u(& I., Pa+t .I t&+$u(& .I/D/!!!, Pa+t .I/D/#, an% Pa+t
.II, an% an $,!n!$n -!t& +e,e"t t$ Pa+t . an% .I/D/!#, !n -&!"& Jut!"e S$ute+, Jut!"e
0!n1u+(, an% Jut!"e 2+e3e+ '$!n.
Petitioner )ali! ,h!ed "a!dan# a Ae!eni national# is in custody at an ,!erican prison in
Duantana!o Bay# *uba. -n %o.e!ber 2771# during hostilities between the /nited )tates and the
Taliban (which then go.erned ,fghanistan)# "a!dan was captured by !ilitia forces and turned
o.er to the /. ). !ilitary. -n June 2772# he was transported to Duantana!o Bay. O.er a year later#
the President dee!ed hi! eligible for trial by !ilitary co!!ission for then6unspecified cri!es.
,fter another year had passed# "a!dan was charged with one count of conspiracy 3to co!!it +
offenses triable by !ilitary co!!ission.4
"a!dan filed petitions for writs of habeas corpus and !anda!us to challenge the &2ecuti.e
BranchMs intended !eans of prosecuting this charge. "e concedes that a court6!artial constituted in
accordance with the /nifor! *ode of ilitary Justice (/*J) would ha.e authority to try hi!.
"is ob>ection is that the !ilitary co!!ission the President has con.ened lac<s such authority# for
two principal reasons1 'irst# neither congressional ,ct nor the co!!on law of war supports trial by
this co!!ission for the cri!e of conspiracyQan offense that# "a!dan says# is not a .iolation of
the law of war. )econd# "a!dan contends# the procedures that the President has adopted to try hi!
.iolate the !ost basic tenets of !ilitary and international law# including the principle that a
defendant !ust be per!itted to see and hear the e.idence against hi!....
'or the reasons that follow# we conclude that the !ilitary co!!ission con.ened to try "a!dan
lac<s power to proceed because its structure and procedures .iolate both the /*J and the Dene.a
*on.entions. 'our of us also conclude that the offense with which "a!dan has been charged is not
an 3offensOeP that by + the law of war !ay be tried by !ilitary co!!issions.4
-
On )epte!ber 11# 2771# agents of the al Eaeda terrorist organiIation hi>ac<ed co!!ercial
airplanes and attac<ed the World Trade *enter in %ew Aor< *ity and the national head(uarters of
the 0epart!ent of 0efense in ,rlington# Firginia. ,!ericans will ne.er forget the de.astation
wrought by these acts. %early ;#777 ci.ilians were <illed.
*ongress responded by adopting a Joint ?esolution authoriIing the President to 3use all
necessary and appropriate force against those nations# organiIations# or persons he deter!ines
planned# authoriIed# co!!itted# or aided the terrorist attac<s + in order to pre.ent any future acts
of international terroris! against the /nited )tates by such nations# organiIations or persons.4
,uthoriIation for /se of ilitary 'orce (,/'). ,cting pursuant to the ,/'# and ha.ing
deter!ined that the Taliban regi!e had supported al Eaeda# the President ordered the ,r!ed
'orces of the /nited )tates to in.ade ,fghanistan. -n the ensuing hostilities# hundreds of
indi.iduals# "a!dan a!ong the!# were captured and e.entually detained at Duantana!o Bay.
On %o.e!ber 1;# 2771# while the /nited )tates was still engaged in acti.e co!bat with the
Taliban# the President issued a co!prehensi.e !ilitary order intended to go.ern the 30etention#
Treat!ent# and Trial of *ertain %on6*itiIens in the War ,gainst Terroris!#4 GG 'ed. ?eg. =L:;;
(hereinafter %o.e!ber 1; Order or Order). Those sub>ect to the %o.e!ber 1; Order include any
noncitiIen for who! the President deter!ines 3there is reason to belie.e4 that he or she (1) 3is or
was4 a !e!ber of al Eaeda or (2) has engaged or participated in terrorist acti.ities ai!ed at or
har!ful to the /nited )tates. ,ny such indi.idual 3shall# when tried# be tried by !ilitary
co!!ission for any and all offenses triable by !ilitary co!!ission that such indi.idual is alleged
to ha.e co!!itted# and !ay be punished in accordance with the penalties pro.ided under
applicable law# including i!prison!ent or death.4 The %o.e!ber 1; Order .ested in the )ecretary
of 0efense the power to appoint !ilitary co!!issions to try indi.iduals sub>ect to the Order# but
that power has since been delegated to John 0. ,ltenberg# Jr.# a retired ,r!y !a>or general and
longti!e !ilitary lawyer who has been designated 3,ppointing ,uthority for ilitary
*o!!issions.4
On July ;# 277;# the President announced his deter!ination that "a!dan and fi.e other
detainees at Duantana!o Bay were sub>ect to the %o.e!ber 1; Order and thus triable by !ilitary
co!!ission. -n 0ece!ber 277;# !ilitary counsel was appointed to represent "a!dan. Two !onths
later# counsel filed de!ands for charges and for a speedy trial pursuant to ,rticle 17 of the /*J.
On 'ebruary 2;# 2778# the legal ad.iser to the ,ppointing ,uthority denied the applications# ruling
that "a!dan was not entitled to any of the protections of the /*J. %ot until July 1;# 2778# after
"a!dan had co!!enced this action in the /nited )tates 0istrict *ourt for the Western 0istrict of
Washington# did the Do.ern!ent finally charge hi! with the offense for which# a year earlier# he
had been dee!ed eligible for trial by !ilitary co!!ission.
The charging docu!ent# which is unsigned# contains 1; nu!bered paragraphs. The first two
paragraphs recite the asserted bases for the !ilitary co!!issionMs >urisdictionQna!ely# the
%o.e!ber 1; Order and the PresidentMs July ;# 277;# declaration that "a!dan is eligible for trial
by !ilitary co!!ission. The ne2t nine paragraphs# collecti.ely entitled 3Deneral ,llegations#4
describe al EaedaMs acti.ities fro! its inception in 19:9 through 2771 and identify Osa!a bin
@aden as the groupMs leader. "a!dan is not !entioned in these paragraphs.
Only the final two paragraphs# entitled 3*harge1 *onspiracy#4 contain allegations against
"a!dan. Paragraph 12 charges that 3fro! on or about 'ebruary 199G to on or about %o.e!ber 28#
2771#4 "a!dan 3willfully and <nowingly >oined an enterprise of persons who shared a co!!on
cri!inal purpose and conspired and agreed with Ona!ed !e!bers of al EaedaP to co!!it the
following offenses triable by !ilitary co!!ission1 attac<ing ci.ilians$ attac<ing ci.ilian ob>ects$
!urder by an unpri.ileged belligerent$ and terroris!.4 There is no allegation that "a!dan had any
co!!and responsibilities# played a leadership role# or participated in the planning of any acti.ity.
Paragraph 1; lists four 3o.ert acts4 that "a!dan is alleged to ha.e co!!itted so!eti!e between
199G and %o.e!ber 2771 in furtherance of the 3enterprise and conspiracy41 (1) he acted as Osa!a
bin @adenMs 3bodyguard and personal dri.er#4 3belie.OingP4 all the while that bin @aden 3and his
associates were in.ol.ed in4 terrorist acts prior to and including the attac<s of )epte!ber 11# 2771$
(2) he arranged for transportation of# and actually transported# weapons used by al Eaeda !e!bers
and by bin @adenMs bodyguards ("a!dan a!ong the!)$ (;) he 3dro.e or acco!panied OOPsa!a bin
@aden to .arious al Eaida6sponsored training ca!ps# press conferences# or lectures#4 at which bin
@aden encouraged attac<s against ,!ericans$ and (8) he recei.ed weapons training at al Eaeda6
sponsored ca!ps.
,fter this for!al charge was filed# the /nited )tates 0istrict *ourt for the Western 0istrict of
Washington transferred "a!danMs habeas and !anda!us petitions to the /nited )tates 0istrict
*ourt for the 0istrict of *olu!bia. eanwhile# a *o!batant )tatus ?e.iew Tribunal (*)?T)
con.ened pursuant to a !ilitary order issued on July L# 2778# decided that "a!danMs continued
detention at Duantana!o Bay was warranted because he was an 3ene!y co!batant.4 )eparately#
proceedings before the !ilitary co!!ission co!!enced....
On %o.e!ber L# 277=# we granted certiorari to decide whether the !ilitary co!!ission
con.ened to try "a!dan has authority to do so# and whether "a!dan !ay rely on the Dene.a
*on.entions in these proceedings.
--
On 'ebruary 1;# 277G# the Do.ern!ent filed a !otion to dis!iss the writ of certiorari. The
ground cited for dis!issal was the recently enacted 0etainee Treat!ent ,ct of 277=. We postponed
our ruling on that !otion pending argu!ent on the !erits# and now deny it...
IV
The !ilitary co!!ission# a tribunal neither !entioned in the *onstitution nor created by statute#
was born of !ilitary necessity. Though foreshadowed in so!e respects by earlier tribunals li<e the
Board of Deneral Officers that Deneral Washington con.ened to try British a>or John ,ndrT for
spying during the ?e.olutionary War# the co!!ission 3as such4 was inaugurated in 1:8L. ,s
co!!ander of occupied e2ican territory# and ha.ing a.ailable to hi! no other tribunal# Deneral
Winfield )cott that year ordered the establish!ent of both 3 Rmilitary commissionsM 4 to try
ordinary cri!es co!!itted in the occupied territory and a 3council of war4 to try offenses against
the law of war....
&2igency alone# of course# will not >ustify the establish!ent and use of penal tribunals not
conte!plated by ,rticle -# U: and ,rticle ---# U1 of the *onstitution unless so!e other part of that
docu!ent authoriIes a response to the felt need. ,nd that authority# if it e2ists# can deri.e only
fro! the powers granted >ointly to the President and *ongress in ti!e of war.
The *onstitution !a<es the President the 3*o!!ander in *hief4 of the ,r!ed 'orces# ,rt. --#
U2# cl. 1# but .ests in *ongress the powers to 3declare War + and !a<e ?ules concerning *aptures
on @and and Water#4 ,rt. -# U:# cl. 11# to 3raise and support ,r!ies#4 id.# cl. 12# to 3define and
punish + Offences against the @aw of %ations#4 id.# cl. 17# and 3To !a<e ?ules for the
Do.ern!ent and ?egulation of the land and na.al 'orces.4The interplay between these powers was
described by *hief Justice *hase in the se!inal case of &2 parte illigan1
3The power to !a<e the necessary laws is in *ongress$ the power to e2ecute in the President. Both
powers i!ply !any subordinate and au2iliary powers. &ach includes all authorities essential to its
due e2ercise. But neither can the President# in war !ore than in peace# intrude upon the proper
authority of *ongress# nor *ongress upon the proper authority of the President+ . *ongress cannot
direct the conduct of ca!paigns# nor can the President# or any co!!ander under hi!# without the
sanction of *ongress# institute tribunals for the trial and punish!ent of offences# either of soldiers
or ci.ilians# unless in cases of a controlling necessity# which >ustifies what it co!pels# or at least
insures acts of inde!nity fro! the >ustice of the legislature.4
Whether *hief Justice *hase was correct in suggesting that the President !ay constitutionally
con.ene !ilitary co!!issions 3without the sanction of *ongress4 in cases of 3controlling
necessity4 is a (uestion this *ourt has not answered definiti.ely# and need not answer today. 'or
we held in uirin that *ongress had# through ,rticle of War 1=# sanctioned the use of !ilitary
co!!issions in such circu!stances. ,rticle 21 of the /*J# the language of which is substantially
identical to the old ,rticle 1= and was preser.ed by *ongress after World War --# reads as follows1
3Jurisdiction of courts6!artial not e2clusi.e.
3The pro.isions of this code conferring >urisdiction upon courts6!artial shall not be construed as
depri.ing !ilitary co!!issions# pro.ost courts# or other !ilitary tribunals of concurrent
>urisdiction in respect of offenders or offenses that by statute or by the law of war !ay be tried by
such !ilitary co!!issions# pro.ost courts# or other !ilitary tribunals.4
We ha.e no occasion to re.isit uirinMs contro.ersial characteriIation of ,rticle of War 1= as
congressional authoriIation for !ilitary co!!issions. *ontrary to the Do.ern!entMs assertion#
howe.er# e.en uirin did not .iew the authoriIation as a sweeping !andate for the President to
3in.o<e !ilitary co!!issions when he dee!s the! necessary.4 ?ather# the uirin *ourt
recogniIed that *ongress had si!ply preser.ed what power# under the *onstitution and the
co!!on law of war# the President had had before 191G to con.ene !ilitary co!!issionsQwith the
e2press condition that the President and those under his co!!and co!ply with the law of war.
That !uch is e.idenced by the *ourtMs in(uiry# following its conclusion that *ongress had
authoriIed !ilitary co!!issions# into whether the law of war had indeed been co!plied with in
that case.
The Do.ern!ent would ha.e us dispense with the in(uiry that the Euirin *ourt undertoo< and find
in either the ,/' or the 0T, specific# o.erriding authoriIation for the .ery co!!ission that has
been con.ened to try "a!dan. %either of these congressional ,cts# howe.er# e2pands the
PresidentMs authority to con.ene !ilitary co!!issions. 'irst# while we assu!e that the ,/'
acti.ated the PresidentMs war powers# see !amdi ..Rumsfeld (2778)# and that those powers include
the authority to con.ene !ilitary co!!issions in appropriate circu!stances# there is nothing in the
te2t or legislati.e history of the ,/' e.en hinting that *ongress intended to e2pand or alter the
authoriIation set forth in ,rticle 21 of the /*J.
@i<ewise# the 0T, cannot be read to authoriIe this co!!ission. ,lthough the 0T,# unli<e
either ,rticle 21 or the ,/'# was enacted after the President had con.ened "a!danMs
co!!ission# it contains no language authoriIing that tribunal or any other at Duantana!o Bay....
Together# the /*J# the ,/'# and the 0T, at !ost ac<nowledge a general Presidential
authority to con.ene !ilitary co!!issions in circu!stances where >ustified under the 3*onstitution
and laws#4 including the law of war. ,bsent a !ore specific congressional authoriIation# the tas< of
this *ourt is# as it was in Euirin# to decide whether "a!danMs !ilitary co!!ission is so >ustified. -t
is to that in(uiry we now turn.
F
The co!!on law go.erning !ilitary co!!issions !ay be gleaned fro! past practice and what
sparse legal precedent e2ists. *o!!issions historically ha.e been used in three situations. 'irst#
they ha.e substituted for ci.ilian courts at ti!es and in places where !artial law has been declared.
Their use in these circu!stances has raised constitutional (uestions# but is well recogniIed. )econd#
co!!issions ha.e been established to try ci.ilians 3as part of a te!porary !ilitary go.ern!ent
o.er occupied ene!y territory or territory regained fro! an ene!y where ci.ilian go.ern!ent
cannot and does not function.4 -llustrati.e of this second <ind of co!!ission is the one that was
established# with >urisdiction to apply the Der!an *ri!inal *ode# in occupied Der!any following
the end of World War --.
The third type of co!!ission# con.ened as an 3incident to the conduct of war4 when there is a
need 3to seiIe and sub>ect to disciplinary !easures those ene!ies who in their atte!pt to thwart or
i!pede our !ilitary effort ha.e .iolated the law of war#4 has been described as 3utterly different4
fro! the other two. %ot only is its >urisdiction li!ited to offenses cogniIable during ti!e of war#
but its role is pri!arily a factfinding oneQto deter!ine# typically on the battlefield itself# whether
the defendant has .iolated the law of war. The last ti!e the /. ). ,r!ed 'orces used the law6of6
war !ilitary co!!ission was during World War --. -n uirin# this *ourt sanctioned President
?oose.eltMs use of such a tribunal to try %aIi saboteurs captured on ,!erican soil during the War.
uirin is the !odel the Do.ern!ent in.o<es !ost fre(uently to defend the co!!ission
con.ened to try "a!dan. That is both appropriate and unsurprising. )ince Duantana!o Bay is
neither ene!y6occupied territory nor under !artial law# the law6of6war co!!ission is the only
!odel a.ailable. ,t the sa!e ti!e# no !ore robust !odel of e2ecuti.e power
e2ists$ uirin represents the high6water !ar< of !ilitary power to try ene!y co!batants for war
cri!es...
The classic treatise penned by *olonel Willia! Winthrop describes at least four preconditions
for e2ercise of >urisdiction by a tribunal of the type con.ened to try "a!dan. 'irst# 3OaP !ilitary
co!!ission# (e2cept where otherwise authoriIed by statute)# can legally assu!e >urisdiction only of
offenses co!!itted within the field of the co!!and of the con.ening co!!ander.4 The 3field of
co!!and4 in these circu!stances !eans the 3theatre of war.4 )econd# the offense charged 3!ust
ha.e been co!!itted within the period of the war.4 %o >urisdiction e2ists to try offenses
3co!!itted either before or after the war.4 Third# a !ilitary co!!ission not established pursuant to
!artial law or an occupation !ay try only 3OiPndi.iduals of the ene!yMs ar!y who ha.e been guilty
of illegiti!ate warfare or other offences in .iolation of the laws of war4 and !e!bers of oneMs own
ar!y 3who# in ti!e of war# beco!e chargeable with cri!es or offences not cogniIable# or triable#
by the cri!inal courts or under the ,rticles of war.4 'inally# a law6of6war co!!ission has
>urisdiction to try only two <inds of offense1 3Fiolations of the laws and usages of war cogniIable
by !ilitary tribunals only#4 and 3ObPreaches of !ilitary orders or regulations for which offenders
are not legally triable by court6!artial under the ,rticles of war.4
,ll parties agree that *olonel WinthropMs treatise accurately describes the co!!on law
go.erning !ilitary co!!issions# and that the >urisdictional li!itations he identifies were
incorporated in ,rticle of War 1= and# later# ,rticle 21 of the /*J. -t also is undisputed that
"a!danMs co!!ission lac<s >urisdiction to try hi! unless the charge 3properly setOsP forth# not
only the details of the act charged# but the circu!stances conferring"urisdiction.4 The (uestion is
whether the preconditions designed to ensure that a !ilitary necessity e2ists to >ustify the use of
this e2traordinary tribunal ha.e been satisfied here.
The charge against "a!dan# described in detail in Part -# alleges a conspiracy e2tending o.er a
nu!ber of years# fro! 199G to %o.e!ber 2771. ,ll but two !onths of that !ore than =6year6long
period preceded the attac<s of )epte!ber 11# 2771# and the enact!ent of the ,/'Qthe ,ct of
*ongress on which the Do.ern!ent relies for e2ercise of its war powers and thus for its authority
to con.ene !ilitary co!!issions. %either the purported agree!ent with Osa!a bin @aden and
others to co!!it war cri!es# nor a single o.ert act# is alleged to ha.e occurred in a theater of war
or on any specified date after )epte!ber 11# 2771. %one of the o.ert acts that "a!dan is alleged to
ha.e co!!itted .iolates the law of war.
These facts alone cast doubt on the legality of the charge and# hence# the co!!ission$ the offense
alleged !ust ha.e been co!!itted both in a theater of war and during# not before# the rele.ant
conflict. But the deficiencies in the ti!e and place allegations also underscoreQindeed are
sy!pto!atic ofQthe !ost serious defect of this charge1 The offense it alleges is not triable by law6
of6war !ilitary co!!ission.
There is no suggestion that *ongress has# in e2ercise of its constitutional authority to 3define and
punish . . . Offences against the @aw of %ations#4 /. ). *onst.# ,rt. -# U:# cl. 17# positi.ely
identified 3conspiracy4 as a war cri!e. ,s we e2plained in uirin# that is not necessarily fatal to
the Do.ern!entMs clai! of authority to try the alleged offense by !ilitary co!!ission$ *ongress#
through ,rticle 21 of the /*J# has 3incorporated by reference4 the co!!on law of war# which
!ay render triable by !ilitary co!!ission certain offenses not defined by statute. When# howe.er#
neither the ele!ents of the offense nor the range of per!issible punish!ents is defined by statute or
treaty# the precedent !ust be plain and una!biguous. To de!and any less would be to ris<
concentrating in !ilitary hands a degree of ad>udicati.e and puniti.e power in e2cess of that
conte!plated either by statute or by the *onstitution.
This high standard was !et in uirin# the .iolation there alleged was# by 3uni.ersal agree!ent
and practice4 both in this country and internationally# recogniIed as an offense against the law of
war....
,t a !ini!u!# the Do.ern!ent !ust !a<e a substantial showing that the cri!e for which it
see<s to try a defendant by !ilitary co!!ission is ac<nowledged to be an offense against the law
of war. That burden is far fro! satisfied here. The cri!e of 3conspiracy4 has rarely if e.er been
tried as such in this country by any law6of6war !ilitary co!!ission not e2ercising so!e other for!
of >urisdiction# and does not appear in either the Dene.a *on.entions or the "ague *on.entionsQ
the !a>or treaties on the law of war....
'inally# international sources confir! that the cri!e charged here is not a recogniIed .iolation
of the law of war. ,s obser.ed abo.e# none of the !a>or treaties go.erning the law of war
identifies conspiracy as a .iolation thereof. ,nd the only 3conspiracy4 cri!es that ha.e been
recogniIed by international war cri!es tribunals (whose >urisdiction often e2tends beyond war
cri!es proper to cri!es against hu!anity and cri!es against the peace) are conspiracy to co!!it
genocide and co!!on plan to wage aggressi.e war# which is a cri!e against the peace and re(uires
for its co!!ission actual participation in a 3concrete plan to wage war.4
-n su!# the sources that the Do.ern!ent and Justice Tho!as rely upon to show that conspiracy
to .iolate the law of war is itself a .iolation of the law of war in fact de!onstrate (uite the
opposite. 'ar fro! !a<ing the re(uisite substantial showing# the Do.ern!ent has failed e.en to
offer a 3!erely colorable4 case for inclusion of conspiracy a!ong those offenses cogniIable by
law6of6war !ilitary co!!ission. Because the charge does not support the co!!issionMs
>urisdiction# the co!!ission lac<s authority to try "a!dan....
The chargeMs shortco!ings are not !erely for!al# but are indicati.e of a broader inability on the
&2ecuti.eMs part here to satisfy the !ost basic preconditionQat least in the absence of specific
congressional authoriIationQfor establish!ent of !ilitary co!!issions1 !ilitary necessity.
"a!danMs tribunal was appointed not by a !ilitary co!!ander in the field of battle# but by a
retired !a>or general stationed away fro! any acti.e hostilities. "a!dan is charged not with an
o.ert act for which he was caught redhanded in a theater of war and which !ilitary efficiency
de!ands be tried e2peditiously# but with an agreement the inception of which long predated the
attac<s of )epte!ber 11# 2771 and the ,/'. That !ay well be a cri!e# but it is not an offense
that 3by the law of war !ay be tried by !ilitary co!!issioOnP.4
F-
Whether or not the Do.ern!ent has charged "a!dan with an offense against the law of war
cogniIable by !ilitary co!!ission# the co!!ission lac<s power to proceed. The /*J conditions
the PresidentMs use of !ilitary co!!issions on co!pliance not only with the ,!erican co!!on
law of war# but also with the rest of the /*J itself# insofar as applicable# and with the 3rules and
precepts of the law of nations4 Qincluding# inter alia# the four Dene.a *on.entions signed in
1989. The procedures that the Do.ern!ent has decreed will go.ern "a!danMs trial by co!!ission
.iolate these laws....
VII
We ha.e assu!ed# as we !ust# that the allegations !ade in the Do.ern!entMs charge against
"a!dan are true. We ha.e assu!ed# !oreo.er# the truth of the !essage i!plicit in that chargeQ
.iI.# that "a!dan is a dangerous indi.idual whose beliefs# if acted upon# would cause great har!
and e.en death to innocent ci.ilians# and who would act upon those beliefs if gi.en the opportunity.
-t bears e!phasiIing that "a!dan does not challenge# and we do not today address# the
Do.ern!entMs power to detain hi! for the duration of acti.e hostilities in order to pre.ent such
har!. But in underta<ing to try "a!dan and sub>ect hi! to cri!inal punish!ent# the &2ecuti.e is
bound to co!ply with the ?ule of @aw that pre.ails in this >urisdiction.
HAMDAN v. RUMSFELD
F",t* o+ t)e ("*e
&alim (hme. 2am.an, 7sama *in /a.enQs former chauffeur, 1as capture. *y (fghani forces an. imprisone. *y the E,&,
military in 0uantanamo !ay, 2e file. a petition for a 1rit of ha*eas corpus in fe.eral .istrict court to challenge his
.etention, !efore the .istrict court rule. on the petition, he recei%e. a hearing from a military tri*unal, 1hich .esignate.
him an enemy com*atant,
( fe1 months later, the .istrict court grante. 2am.anQs ha*eas petition, ruling that he must first *e gi%en a hearing to
.etermine 1hether he 1as a prisoner of 1ar un.er the 0ene%a Con%ention *efore he coul. *e trie. *y a military
commission, The Circuit Court of (ppeals for the District of Colum*ia re%erse. the .ecision, ho1e%er, fin.ing that the
0ene%a Con%ention coul. not *e enforce. in fe.eral court an. that the esta*lishment of military tri*unals ha. *een
authori9e. *y Congress an. 1as therefore not unconstitutional,
3-e*t.o#
ay the rights protecte. *y the 0ene%a Con%ention *e enforce. in fe.eral court through ha*eas corpus petitionsN @as
the military commission esta*lishe. to try 2am.an an. others for allege. 1ar crimes in the @ar on Terror authori9e. *y
the Congress or the inherent po1ers of the Presi.entN
(o#,/-*.o#
Le1"/ pro4.*.o#2 Eniform Co.e of ilitary 3ustice
Kes an. no, The &upreme Court, in a #>to>6 .ecision authore. *y 3ustice 3ohn Paul &te%ens, hel. that neither an act of
Congress nor the inherent po1ers of the 8Aecuti%e lai. out in the Constitution eApressly authori9e. the sort of military
commission at issue in this case, (*sent that eApress authori9ation, the commission ha. to comply 1ith the or.inary la1s
of the Enite. &tates an. the la1s of 1ar, The 0ene%a Con%ention, as a part of the or.inary la1s of 1ar, coul. therefore
*e enforce. *y the &upreme Court, along 1ith the statutory Eniform Co.e of ilitary 3ustice, 2am.anQs eAclusion from
certain parts of his trial .eeme. classifie. *y the military commission %iolate. *oth of these, an. the trial 1as therefore
illegal, 3ustices &calia, Thomas, an. (lito .issente., Chief 3ustice 3ohn Ro*erts, 1ho participate. in the case 1hile
ser%ing on the DC Circuit Court of (ppeals, .i. not ta5e part in the .ecision,
U.S. Supreme Court
In %& 9a4a'/(.a, 127 6.#. 1 A1246B
In %& 9a4a'/(.a
N,. 61, M(':.
A%)+&d *an+a%y 7, 8, 1246
D&:(d&d 7&5%+a%y 4, 1246C
127 6.#. 1
%44@6C%T6AN $AR @>%B> TA $6@> 4>T6T6AN $AR -R6T A$
<%">%, CAR45, %N& -R6T A$ 4RA<6"6T6AN
,llabus
"rior to September 2, '(7:, petitioner was the Commanding =eneral of the Fourteenth .rmy =roup of the ;mperial
9apanese .rmy in the "hilippine ;slands+ <n that day, he surrendered to the Dnited States .rmy and became a
prisoner of war+ 4espondent was the Commanding =eneral of the Dnited States .rmy Forces, Hestern "acific, whose
command embraced the "hilippine ;slands+ 4espondent appointed a military commission to try the petitioner on a
charge of 0iolation of the law of war+ The gist of the charge was that petitioner had failed in his duty as an army
commander to control the operations of his troops, Cpermitting them to commitC specified atrocities against the
ci0ilian population and prisoners of war+ "etitioner was found guilty, and sentenced to death+
<el2=
'+ The military commission appointed to try the petitioner was lawfully created+ "+ 21) D+ S+ (+
(a) 5ature of the authority to create military commissions for the trial of enemy combatants for offenses against the
law of war, and principles go0erning the exercise of @urisdiction by such commissions, considered+ Citing >? 1arte
Quirin! 2') D+ S+ ', and other cases+ "p+ 21) D+ S+ )3(+
(b) . military commission may be appointed by any field commander, or by any commander competent to appoint a
general court3martial, as was respondent by order of the "resident+ "+ 21) D+ S+ '8+
(c) The order creating the military commission was in conformity with the .ct of Congress ('8 D+S+C+ dd '7)'3':(2)
sanctioning chanrobles0irtualawlibrary
"age 21) D+ S+ 1
the creation of such tribunals for the trial of offenses against the law of war committed by enemy combatants+ "+ 21)
D+ S+ ''+
1+ Trial of the petitioner by the military commission was lawful, although hostilities had ceased+ "+ 21) D+ S+ '1+
(a) . 0iolation of the law of war, committed before the cessation of hostilities, may lawfully be tried by a military
commission after hostilities ha0e ceased 33 at least until peace has been officially recogniBed by treaty or proclamation
by the political branch of the =o0ernment+ "+ 21) D+ S+ '1+
(b) Trial of the petitioner by the military commission was authoriBed by the political branch of the =o0ernment, by
military command, by international law and usage, and by the terms of the surrender of the 9apanese go0ernment+
"+ 21) D+ S+ '2+
2+ The charge preferred against the petitioner was of a 0iolation of the law of war+ "+ 21) D+ S+ '2+
(a) The law of war imposes on an army commander a duty to ta$e such appropriate measures as are within his power
to control the troops under his command for the pre0ention of acts which are 0iolations of the law of war and which
are li$ely to attend the occupation of hostile territory by an uncontrolled soldiery, and he may be charged with
personal responsibility for his failure to ta$e such measures when 0iolations result+ "p+ 21) D+ S+ '7, 21) D+ S+ '6+
(b) Hhat measures, if any, petitioner too$ to pre0ent the alleged 0iolations of the law of war, and whether such
measures as he may ha0e ta$en were appropriate and sufficient to discharge the duty imposed upon him, were
/uestions within the peculiar competence of the military officers composing the commission, and were for it to decide+
"+ 21) D+ S+ '6+
(c) Charges of 0iolations of the law of war triable before a military tribunal need not be stated with the precision of a
common law indictment+ "+ 21) D+ S+ ')+
(d) The allegations of the charge here, tested by any reasonable standard, sufficiently set forth a 0iolation of the law
of war, and the military commission had authority to try and to decide the issue which it raised+ "+ 21) D+ S+ ')+
7+ ;n admitting on behalf of the prosecution a deposition and hearsay and opinion e0idence, the military commission
did not 0iolate any .ct of Congress, treaty, or military command defining the commissionGs authority+ "p+ 21) D+ S+
'*,21) D+ S+ 12+
(a) The .rticles of Har, including .rticles 1: and 2*, are not applicable to the trial of an enemy combatant by a
military commission chanrobles0irtualawlibrary
"age 21) D+ S+ 2
for 0iolations of the law of war, and imposed no restrictions upon the procedure to be followed in such trial+ "p+ 21) D+
S+ '(318+
(b) .rticle 62 of the =ene0a Con0ention of '(1(, which pro0ides that
CSentence may be pronounced against a prisoner of war only by the same courts and according to the same
procedure as in the case of persons belonging to the armed forces of the detaining "ower,C
does not re/uire that .rticles 1: and 2* of the .rticles of Har be applied in the trial of the petitioner+ .rticle 62 refers
to sentence Cpronounced against a prisoner of warC for an offense committed while a prisoner of war, and not for a
0iolation of the law of war committed while a combatant+ "+ 21) D+ S+ 18+
(c) The Court expresses no opinion on the /uestion of the wisdom of considering such e0idence as was recei0ed in this
proceeding, nor on the /uestion whether the action of a military tribunal in admitting e0idence which Congress or
controlling military command has directed to be excluded may be drawn in /uestion by petition for habeas corpus or
prohibition+ "+ 21) D+ S+ 12+
:+ <n an application for habeas corpus, the Court is not concerned with the guilt or innocence of the petitioner+ "+21)
D+ S+ *+
6+ ,y sanctioning trials of enemy aliens by military commission for offenses against the law of war, Congress
recogniBed the right of the accused to ma$e a defense, and did not foreclose their right to contend that the
Constitution or laws of the Dnited States withhold authority to proceed with the trial+ "+ 21) D+ S+ (+
)+ The Court does not appraise the e0idence on which the petitioner here was con0icted+ "+ 21) D+ S+ ')+
*+ The military commissionGs rulings on e0idence and on the mode of conducting the proceedings against the
petitioner are not re0iewable by the courts, but only by the re0iewing military authorities+ From this 0iewpoint, it is
unnecessary to consider what, in other situations, the Fifth .mendment might re/uire+ "p+ 21) D+ S+ *, 21) D+ S+ 12+
(+ .rticle 68 of the =ene0a Con0ention of '(1(, which pro0ides that,
C.t the opening of a @udicial proceeding directed against a prisoner of war, the detaining "ower shall ad0ise the
representati0e of the protecting "ower thereof as soon as possible, and always before the date set for the opening of
the trial,C
applies only to persons who are sub@ected to @udicial proceedings for offenses committed while prisoners of war+ "+21)
D+ S+ 12+
'8+ The detention of the petitioner for trial, and his detention upon his con0iction, sub@ect to the prescribed re0iew by
the military authorities, were lawful+ "+ 21) D+ S+ 1:+
Aea0e and petition denied+ chanrobles0irtualawlibrary
"age 21* D+ S+ 7
5o+ 6', >isc+ .pplication for lea0e to file a petition for writs of habeas corpus and prohibition in this Court challenging
the @urisdiction and legal authority of a military commission which con0icted applicant of a 0iolation of the law of war
and sentenced him to be hanged+ &enie2.
5o+ 6)1+ "etition for certiorari to re0iew an order of the Supreme Court of the Commonwealth of the "hilippines, 71
<ff+=aB+ 667, denying an application for writs of habeas corpus and prohibition li$ewise challenging the @urisdiction
and legal authority of the military commission which tried and con0icted petitioner+ &enie2.
>4+ C&;!F 9DST;C! ST<5! deli0ered the opinion of the Court+
5o+ 6' >iscellaneous is an application for lea0e to file a petition for writs of habeas corpus and prohibition in this
Court+ 5o+ 6)1 is a petition for certiorari to re0iew an order of the Supreme Court of the the "hilippines (1* D+S+C+ d
27() denying petitionerGs application to that court for writs of habeas corpus and prohibition+ .s both applications
raise substantially li$e /uestions, and because of the importance and no0elty of some of those presented, we set the
two applications down for oral argument as one case+ chanrobles0irtualawlibrary
"age 21) D+ S+ :
From the petitions and supporting papers, it appears that, prior to September 2, '(7:, petitioner was the
Commanding =eneral of the Fourteenth .rmy =roup of the ;mperial 9apanese .rmy in the "hilippine ;slands+ <n that
date, he surrendered to and became a prisoner of war of the Dnited States .rmy Forces in ,aguio, "hilippine ;slands+
<n September 1:th, by order of respondent, Aieutenant =eneral Hilhelm -+ Styer, Commanding =eneral of the Dnited
States .rmy Forces, Hestern "acific, which command embraces the "hilippine ;slands, petitioner was ser0ed with a
charge prepared by the 9udge .d0ocate =eneralGs -epartment of the .rmy, purporting to charge petitioner with a
0iolation of the law of war+ <n <ctober *, '(7:, petitioner, after pleading not guilty to the charge, was held for trial
before a military commission of fi0e .rmy officers appointed by order of =eneral Styer+ The order appointed six .rmy
officers, all lawyers, as defense counsel+ Throughout the proceedings which followed, including those before this
Court, defense counsel ha0e demonstrated their professional s$ill and resourcefulness and their proper Beal for the
defense with which they were charged+
<n the same date, a bill of particulars was filed by the prosecution, and the commission heard a motion made in
petitionerGs behalf to dismiss the charge on the ground that it failed to state a 0iolation of the law of war+ <n <ctober
1(th, the commission was recon0ened, a supplemental bill of particulars was filed, and the motion to dismiss was
denied+ The trial then proceeded until its conclusion on -ecember ), '(7:, the commission hearing two hundred and
eighty3six witnesses, who ga0e o0er three thousand pages of testimony+ <n that date, petitioner was found guilty of
the offense as charged, and sentenced to death by hanging+
The petitions for habeas corpus set up that the detention of petitioner for the purpose of the trial was unlawful forchanrobles0irtualawlibrary
"age 21) D+ S+ 6
reasons which are now urged as showing that the military commission was without lawful authority or @urisdiction to
place petitioner on trial, as follows:
(a) That the military commission which tried and con0icted petitioner was not lawfully created, and that no military
commission to try petitioner for 0iolations of the law of war could lawfully be con0ened after the cessation of hostilities
between the armed forces of the Dnited States and 9apanF
(b) that the charge preferred against petitioner fails to charge him with a 0iolation of the law of warF
(c) that the commission was without authority and @urisdiction to try and con0ict petitioner, because the order
go0erning the procedure of the commission permitted the admission in e0idence of depositions, affida0its, and
hearsay and opinion e0idence, and because the commissionGs rulings admitting such e0idence were in 0iolation of the
1:th and 2*th .rticles of Har ('8 D+S+C+ dd '7(6, ':8() and the =ene0a Con0ention (7) Stat+ 181'), and depri0ed
petitioner of a fair trial in 0iolation of the due process clause of the Fifth .mendmentF
(d) that the commission was without authority and @urisdiction in the premises because of the failure to gi0e ad0ance
notice of petitionerGs trial to the neutral power representing the interests of 9apan as a belligerent as re/uired by
.rticle 68 of the =ene0a Con0ention, 7) Stat+ 181', 18:'+
<n the same grounds, the petitions for writs of prohibition set up that the commission is without authority to proceed
with the trial+
The Supreme Court of the "hilippine ;slands, after hearing argument, denied the petition for habeas corpus presented
to it on the ground, among others, that its @urisdiction was limited to an in/uiry as to the @urisdiction of the
commission to place petitioner on trial for the offense charged, and that the commission, being 0alidly constitutedchanrobles0irtualawlibrary
"age 21) D+ S+ )
by the order of =eneral Styer, had @urisdiction o0er the person of petitioner and o0er the trial for the offense charged+
;n >? 1arte Quirin! 2') D+ S+ ', we had occasion to consider at length the sources and nature of the authority to
create military commissions for the trial of enemy combatants for offenses against the law of war+ He there pointed
out that Congress, in the exercise of the power conferred upon it by .rticle ;, d *, Cl+ '8, of the Constitution to Cdefine
and punish + + + <ffenses against the Aaw of 5ations + + + C of which the law of war is a part, had, by the .rticles of Har
('8 D+S+C+ dd '7)'3':(2), recogniBed the Cmilitary commissionC appointed by military command, as it had pre0iously
existed in Dnited States .rmy practice, as an appropriate tribunal for the trial and punishment of offenses against the
law of war+ .rticle ': declares that
Cthe pro0isions of these articles conferring @urisdiction upon courts3martial shall not be construed as depri0ing military
commissions + + + or other military tribunals of concurrent @urisdiction in respect of offenders of offenses that, by
statute or by the law of war, may be triable by such military commissions + + + or other military tribunals+C
,ee a similar pro0ision of the !spionage .ct of '('), :8 D+S+C+ d 2*+ .rticle 1 includes among those persons sub@ect
to the .rticles of Har the personnel of our own military establishment+ ,ut this, as .rticle '1 indicates, does not
exclude from the class of persons sub@ect to trial by military commissions Cany other person who, by the law of war, is
sub@ect to trial by military tribunalsC and who, under .rticle '1, may be tried by court martial, or, under .rticle ':, by
military commission+
He further pointed out that Congress, by sanctioning trial of enemy combatants for 0iolations of the law of war by
military commission, had not attempted to codify the law of war or to mar$ its precise boundaries+ ;nstead, by .rticle
':, it had incorporated, by reference, as within the chanrobles0irtualawlibrary
"age 21) D+ S+ *
preexisting @urisdiction of military commissions created by appropriate military command, all offenses which are
defined as such by the law of war and which may constitutionally be included within that @urisdiction+ ;t thus adopted
the system of military common law applied by military tribunals so far as it should be recogniBed and deemed
applicable by the courts, and as further defined and supplemented by the &ague Con0ention, to which the Dnited
States and the .xis powers were parties+
He also emphasiBed in >? 1arte Quirin! as we do here, that, on application for habeas corpus, we are not concerned
with the guilt or innocence of the petitioners+ He consider here only the lawful power of the commission to try the
petitioner for the offense charged+ ;n the present cases, it must be recogniBed throughout that the military tribunals
which Congress has sanctioned by the .rticles of Har are not courts whose rulings and @udgments are made sub@ect
to re0iew by this Court+ ,ee 6+ 5. ,. *9. The are tribunals 0hose 2eter'inations are revie0able b the 'ilitar
authorities either as 1rovi2e2 in the 'ilitar or2ers #onstituting su#h tribunals or as 1rovi2e2 b the %rti#les of -ar.
Congress #onferre2 on the #ourts no 1o0er to revie0 their 2eter'inations save onl as it has grante2 Cu2i#ial 1o0er
Dto grant 0rits of habeas #or1us for the 1ur1ose of an inEuir into the #ause of the restraint of libert.D 2+ 5.,.C. FF
).1! ).2. The #ourts 'a inEuire 0hether the 2etention #o'1laine2 of is 0ithin the authorit of those 2etaining the
1etitioner. 6f the 'ilitar tribunals have la0ful authorit to hear! 2e#i2e! an2 #on2e'n! their a#tion is not subCe#t to
Cu2i#ial revie0 'erel be#ause the have 'a2e a 0rong 2e#ision on 2is1ute2 fa#ts. Corre#tion of their errors of
2e#ision is not for the #ourts! but for the 'ilitar authorities! 0hi#h are alone authorize2 to revie0 their
2e#isions. See 6' D+ S+ *'F 122 5. ,. ...-..6: Carter 0+ >cClaughry, 1+* 5. ,. *6.: Collins 0+ >c-onald, 2.+ 5. ,.
)16. Cf+ >atter of >oran,e 182 D+ S+ (6,182 D+ S+ '8:+
Finally, we held in >? 1arte Quirin! su1ra! 2') D+ S+ 1731:, as we hold now, that Congress, by sanctioning trials of
enemy aliens by military commission for offenses against the law of war, had recogniBed the right of the accused to
ma$e a defense+ Cf. >? 1arte Ga0ato! 2') D+ S+ 6(+ ;t has not foreclosed their right to contend that the Constitution
or laws of the Dnited States withhold authority to proceed with the trial+ ;t has not withdrawn, and the !xecuti0e
branch of the go0ernment could not, unless there was suspension of the writ, withdraw from the courts the duty and
power to ma$e such in/uiry into the authority of the commission as may be made by habeas corpus+
Hith these go0erning principles in mind, we turn to the consideration of the se0eral contentions urged to establish
want of authority in the commission+ He are not here concerned with the power of military commissions to try
ci0ilians+ ,ee /1 5. ,. 1*2: Sterling 0+ Constantin, 2+/ 5. ,. */+: !x parte #uirin, supra,e 2') D+ S+ 7:+ The
=o0ernmentGs contention is that =eneral StyerGs order creating the commission conferred authority on it only to try
the purported charge of 0iolation of the law of war committed by petitioner, an enemy belligerent, while in command
of a hostile army occupying Dnited States territory during time of war+ <ur first in/uiry must therefore be whether the
present commission was created by lawful military command, and, if so, whether authority could thus be conferred on
the commission to place petitioner on trial after the cessation of hostilities between the armed forces of the Dnited
States and 9apan+
The authorit to #reate the Co''ission. =eneral StyerGs order for the appointment of the commission was made by
him as Commander of the Dnited States .rmed Forces, Hestern "acific+ &is command includes, as part chanrobles0irtualawlibrary
"age 21) D+ S+ '8
of a 0astly greater area, the "hilippine ;slands, where the alleged offenses were committed, where petitioner
surrender as a prisoner of war, and where, at the time of the order con0ening the commission, he was detained as a
prisoner in custody of the Dnited States .rmy+ The Congressional recognition of military commissions and its sanction
of their use in trying offenses against the law of war to which we ha0e referred sanctioned their creation by military
command in conformity to long established .merican precedents+ Such a commission may be appointed by any field
commander, or by any commander competent to appoint a general court martial, as was =eneral Styer, who had been
0ested with that power by order of the "resident+ 1 Hinthrop, >ilitary Aaw and "recedents,1d !d+, f'281F #f..rticle of
Har *+
&ere, the commission was not only created by a commander competent to appoint it, but his order conformed to the
established policy of the =o0ernment and to higher military commands authoriBing his action+ ;n a proclamation of
9uly 1, '(71 (:6 Stat+ '(67), the "resident proclaimed that enemy belligerents who, during time of war, enter the
Dnited States, or any territory possession thereof, and who 0iolate the law of war, should be sub@ect to the law of war
and to the @urisdiction of military tribunals+ "aragraph '8 of the -eclaration of "otsdam of 9uly 6, '(7:, declared that
C + + + stern @ustice shall be meted out to all war criminals, including those who ha0e 0isited cruelties upon prisoners+C
D+S+ -ept+ of State ,ull+, ?ol+ J;;;, 5o+ 2'*, pp+ '2), '2*+ This -eclaration was accepted by the 9apanese go0ernment
by its note of .ugust '8, '(7:+ D+S+ -ept+ of State ,ull+, ?ol+ J;;;, 5o+ 218, p+ 18:+
,y direction of the "resident, the 9oint Chiefs of Staff of the .merican >ilitary Forces, on September '1, '(7:,
instructed =eneral >ac.rthur, Commander in Chief, Dnited States .rmy Forces, "acific, to proceed with the trial,
before chanrobles0irtualawlibrary
"age 21) D+ S+ ''
appropriate military tribunals, of such 9apanese war criminals Cas ha0e been or may be apprehended+C ,y order of
=eneral >ac.rthur of September 17, '(7:, =eneral Styer was specifically directed to proceed with the trial of
petitioner upon the charge here in0ol0ed+ This order was accompanied by detailed rules and regulations which =eneral
>ac.rthur prescribed for the trial of war criminals+ These regulations directed, among other things, that re0iew of the
sentence imposed by the commission should be by the officer con0ening it, with Cauthority to appro0e, mitigate,
remit, commute, suspend, reduce, or otherwise alter the sentence imposed,C and directed that no sentence of death
should be carried into effect until confirmed by the Commander in Chief, Dnited States .rmy Forces, "acific+
;t thus appears that the order creating the commission for the trial of petitioner was authoriBed by military command,
and was in complete conformity to the .ct of Congress sanctioning the creation of such tribunals for the trial of
offenses against the law of war committed by enemy combatants+ .nd we turn to the /uestion whether the authority
to create the commission and direct the trial by military order continued after the cessation of hostilities+
.n important incident to the conduct of war is the adoption of measures by the military commander not only to repel
and defeat the enemy, but to seiBe and sub@ect to disciplinary measures those enemies who, in their attempt to
thwart or impede our military effort, ha0e 0iolated the law of war+ >? 1arte Quirin! su1ra! 2') D+ S+ 1*+ The trial and
punishment of enemy combatants who ha0e committed 0iolations of the law of war is thus not only a part of the
conduct of war operating as a pre0enti0e measure against such 0iolations, but is an exercise of the authority
sanctioned by Congress to administer the system of military @ustice recogniBed by the law of war+ That sanction is
without /ualification as to the exercise of this authority so chanrobles0irtualawlibrary
"age 21) D+ S+ '1
long as a state of war exists 33 from its declaration until peace is proclaimed+ ,ee /6 5. ,. /0: )( D+ S+ )81F (#>lrath
v. 5nite2 ,tates! '81 D+ S+ 716, '81 D+ S+ 72*F Gahn v. %n2erson! 1:: D+ S+ ', 1:: D+ S+ (3'8+ The war power, from
which the commission deri0es its existence, is not limited to 0ictories in the field, but carries with it the inherent
power to guard against the immediate renewal of the conflict, and to remedy, at least in ways Congress has
recogniBed, the e0ils which the military operations ha0e produced+ eSee )* D+ S+ :8)+
He cannot say that there is no authority to con0ene a commission after hostilities ha0e ended to try 0iolations of the
law of war committed before their cessation, at least until peace has been officially recogniBed by treaty or
proclamation of the political branch of the =o0ernment+ ;n fact, in most instances, the practical administration of the
system of military @ustice under the law of war would fail if such authority were thought to end with the cessation of
hostilities+ For only after their cessation could the greater number of offenders and the principal ones be apprehended
and sub@ected to trial+
5o writer on international law appears to ha0e regarded the power of military tribunals, otherwise competent to try
0iolations of the law of war, as terminating before the formal state of war has ended+ KFootnote 'L ;n our own military
history, chanrobles0irtualawlibrary
"age 21) D+ S+ '2
there ha0e been numerous instances in which offenders were tried by military commission after the cessation of
hostilities and before the proclamation of peace, for offenses against the law of war committed before the cessation of
hostilities+ KFootnote 1L
The extent to which the power to prosecute 0iolations of the law of war shall be exercised before peace is declared
rests not with the courts, but with the political branch of the =o0ernment, and may itself be go0erned by the terms of
an armistice or the treaty of peace+ &ere, peace has not been agreed upon or proclaimed+ 9apan, by her acceptance of
the "otsdam -eclaration and her surrender, has ac/uiesced in the trials of those guilty of 0iolations of the law of war+
The conduct of the trial by the military commission has been authoriBed by the political branch of the =o0ernment, by
military command, by international law and usage, and by the terms of the surrender of the 9apanese go0ernment+
The Charge. 5either Congressional action nor the military orders constituting the commission authoriBed it to place
petitioner on trial unless the charge preferred against him is of a 0iolation of the law of war+ The charge, so far as now
rele0ant, is that petitioner, between <ctober (, '(77, and September 1, '(7:, in the "hilippine ;slands,
Cwhile commander of armed forces of 9apan at war with the Dnited States of .merica and its allies, unlawfully
disregarded and failed to discharge his duty as commander to
"age 21) D+ S+ '7
control the operations of the members of his command, permitting them to commit brutal atrocities and other high
crimes against people of the Dnited States and of its allies and dependencies, particularly the "hilippines, and he + + +
thereby 0iolated the laws of war+C
,ills of particulars, filed by the prosecution by order of the commission, allege a a series of acts, one hundred and
twenty3three in number, committed by members of the forces under petitionerGs command during the period
mentioned+ The first item specifies the execution of a
Ca deliberate plan and purpose to massacre and exterminate a large part of the ci0ilian population of ,atangas
"ro0ince, and to de0astate and destroy public, pri0ate, and religious property therein, as a result of which more than
1:,888 men, women and children, all unarmed noncombatant ci0ilians, were brutally mistreated and $illed, without
cause or trial, and entire settlements were de0astated and destroyed wantonly and without military necessity+C
<ther items specify acts of 0iolence, cruelty, and homicide inflicted upon the ci0ilian population and prisoners of war,
acts of wholesale pillage, and the wanton destruction of religious monuments+
;t is not denied that such acts directed against the ci0ilian population of an occupied country and against prisoners of
war are recogniBed in international law as 0iolations of the law of war+ .rticles 7, 1*, 76, and 7), .nnex to Fourth
&ague Con0ention, '(8), 26 Stat+ 11)), 11(6, 1282, 1286, 128)+ ,ut it is urged that the charge does not allege that
petitioner has either committed or directed the commission of such acts, and conse/uently that no 0iolation is charged
as against him+ ,ut this o0erloo$s the fact that the gist of the charge is an unlawful breach of duty by petitioner as an
army commander to control the operations of the members of his command by Cpermitting them to commitC the
extensi0e and widespread atrocities specified+ The /uestion, then, is whether the law of war imposeschanrobles0irtualawlibrary
"age 21) D+ S+ ':
on an army commander a duty to ta$e such appropriate measures as are within his power to control the troops under
his command for the pre0ention of the specified acts which are 0iolations of the law of war and which are li$ely to
attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal
responsibility for his failure to ta$e such measures when 0iolations result+ That this was the precise issue to be tried
was made clear by the statement of the prosecution at the opening of the trial+
;t is e0ident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts
of their commander would almost certainly result in 0iolations which it is the purpose of the law of war to pre0ent+ ;ts
purpose to protect ci0ilian populations and prisoners of war from brutality would largely be defeated if the commander
of an in0ading army could, with impunity, neglect to ta$e reasonable measures for their protection+ &ence, the law of
war presupposes that its 0iolation is to be a0oided through the control of the operations of war by commanders who
are to some extent responsible for their subordinates+
This is recogniBed by the .nnex to Fourth &ague Con0ention of '(8), respecting the laws and customs of war on land+
.rticle ; lays down, as a condition which an armed force must fulfill in order to be accorded the rights of lawful
belligerents, that it must be Ccommanded by a person responsible for his subordinates+C 26 Stat+ 11(:+ Similarly,
.rticle '( of the Tenth &ague Con0ention, relating to bombardment by na0al 0essels, pro0ides that commanders in
chief of the belligerent 0essels Cmust see that the abo0e .rticles are properly carried out+C 26 Stat+ 12*(+ .nd .rticle
16 of the =ene0a 4ed Cross Con0ention of '(1(, 7) Stat+ 18)7, 18(1, for the amelioration of the condition of the
wounded and sic$ in armies in the field, ma$es it
Cthe duty of the commanders in chief of the belligerent
"age 21) D+ S+ '6
armies to pro0ide for the details of execution of the foregoing articles Kof the con0entionL, as well as for unforeseen
cases+C
.nd, finally, .rticle 72 of the .nnex of the Fourth &ague Con0ention, 26 Stat+ 1286, re/uires that the commander of a
force occupying enemy territory, as was petitioner,
Cshall ta$e all the measures in his power to restore and ensure, as far as possible, public order and safety, while
respecting, unless absolutely pre0ented, the laws in force in the country+C
These pro0isions plainly imposed on petitioner, who at the time specified was military go0ernor of the "hilippines as
well as commander of the 9apanese forces, an affirmati0e duty to ta$e such measures as were within his power and
appropriate in the circumstances to protect prisoners of war and the ci0ilian population+ This duty of a commanding
officer has heretofore been recogniBed, and its breach penaliBed by our own military tribunals+ KFootnote 2L . li$e
principle has been applied so as to impose liability on the Dnited States in international arbitrations+ Case of ;enau2!2
>oore, ;nternational .rbitrations 2888F Case of DThe Hafiro!D : &ac$worth, -igest of ;nternational Aaw )8)+
He do not ma$e the laws of war, but we respect them so far as they do not conflict with the commands of Congress
or the Constitution+ There is no contention that the present charge, thus read, is without the support of e0idence, or
that the commission held petitioner responsible for failing to ta$e measures which were beyond his control or
inappropriate for a commanding officer to ta$e in the circumstances+ KFootnote 7L chanrobles0irtualawlibrary
"age 21) D+ S+ ')
He do not here appraise the e0idence on which petitioner was con0icted+ He do not consider what measures, if any,
petitioner too$ to pre0ent the commission, by the troops under his command, of the plain 0iolations of the law of war
detailed in the bill of particulars, or whether such measures as he may ha0e ta$en were appropriate and sufficient to
discharge the duty imposed upon him+ These are /uestions within the peculiar competence of the military officers
composing the commission, and were for it to decide+ ,ee ,'ith v. -hitne! ''6 D+ S+ '6), ''6 D+ S+ ')*+ ;t is plain
that the charge on which petitioner was tried charged him with a breach of his duty to control the operations of the
members of his command, by permitting them to commit the specified atrocities+ This was enough to re/uire the
commission to hear e0idence tending to establish the culpable failure of petitioner to perform the duty imposed on
him by the law of war, and to pass upon its sufficiency to establish guilt+
<b0iously, charges of 0iolations of the law of war triable before a military tribunal need not be stated with the
precision of a common law indictment+ Cf. Collins v. (#&onal2! su1ra! 1:* D+ S+ 718+ ,ut we conclude that the
allegations of the charge, tested by any reasonable standard, ade/uately allege a 0iolation of the law of war, and that
the chanrobles0irtualawlibrary
"age 21) D+ S+ '*
commission had authority to try and decide the issue which it raised+ Cf. &eal v. 5nite2 ,tates! ':1 D+ S+
:2(F-illia'son v. 5nite2 ,tates! 18) D+ S+ 71:, 18) D+ S+ 77)F 7lasser v. 5nite2 ,tates! 2': D+ S+ 68, 2': D+ S+ 66,
and cases cited+
The 4ro#ee2ings before the Co''ission. The regulations prescribed by =eneral >ac.rthur go0erning the procedure
for the trial of petitioner by the commission directed that the commission should admit such e0idence
Cas, in its opinion, would be of assistance in pro0ing or dispro0ing the charge, or such as, in the commissionGs opinion,
would ha0e probati0e 0alue in the mind of a reasonable man,C
and that, in particular, it might admit affida0its, depositions, or other statements ta$en by officers detailed for that
purpose by military authority+ The petitions in this case charged that, in the course of the trial, the commission
recei0ed, o0er ob@ection by petitionerGs counsel, the deposition of a witness ta$en pursuant to military authority by a
Dnited States .rmy captain+ ;t also, o0er li$e ob@ection, admitted hearsay and opinion e0idence tendered by the
prosecution+ "etitioner argues, as ground for the writ of habeas corpus, that .rticle 1: KFootnote :L of the .rticles of
Har prohibited the reception in e0idence by the commission of depositions on behalf of the prosecution in a capital
case, and that .rticle 2* KFootnote 6L prohibited the reception of hearsay and of opinion e0idence+ chanrobles0irtualawlibrary
"age 21) D+ S+ '(
He thin$ that neither .rticle 1: nor .rticle 2* is applicable to the trial of an enemy combatant by a military
commission for 0iolations of the law of war+ .rticle 1 of the .rticles of Har enumerates Cthe persons + + + sub@ect to
these articles,C who are denominated, for purposes of the .rticles, as Cpersons sub@ect to military law+C ;n general, the
persons so enumerated are members of our own .rmy and of the personnel accompanying the .rmy+ !nemy
combatants are not included among them+ .rticles '1, '2, and '7, before the adoption of .rticle ': in '('6, 2( Stat+
6:2, made all Cpersons sub@ect to military lawC amenable to trial by courts3martial for any offense made punishable by
the .rticles of Har+ .rticle '1 ma$es triable by general court martial Cany other person who, by the law of war, is
KtriableL by military tribunals+C Since .rticle 1, in its '('6 form, 2( Stat+ 6:', includes some persons who, by the law
of war, were, prior to '('6, triable by military commission, it was feared by the proponents of the '('6 legislation
that, in the absence of a sa0ing pro0ision, the authority gi0en by .rticles '1, '2, and '7 to try such persons before
courts3martial might be construed to depri0e the nonstatutory military commission of a portion of what was
considered to be its traditional @urisdiction+ To a0oid this, and to preser0e that @urisdiction intact, .rticle ': was added
to the .rticles+ KFootnote )L ;t declared that
CThe pro0isions of these articles
"age 21) D+ S+ 18
conferring @urisdiction upon courts3martial shall not be construed as depri0ing military commissions + + + of concurrent
@urisdiction in respect of offenders or offenses that, by the law of war, may be lawfully triable by such military
commissions+C
,y thus recogniBing military commissions in order to preser0e their traditional @urisdiction o0er enemy combatants
unimpaired by the .rticles, Congress ga0e sanction, as we held in >? 1arte Quirin! to any use of the military
commission contemplated by the common law of war+ ,ut it did not thereby ma$e sub@ect to the .rticles of Har
persons other than those defined by .rticle 1 as being sub@ect to the .rticles, nor did it confer the benefits of the
.rticles upon such persons+ The .rticles recogniBed but one $ind of military commission, not two+ ,ut they sanctioned
the use of that one for the trial of two classes of persons, to one of which the .rticles do, and to the other of which
they do not, apply in such trials+ ,eing of this latter class, petitioner cannot claim the benefits of the .rticles, which
are applicable only to the members of the other class+ "etitioner, an enemy combatant, is therefore not a person
made sub@ect to the .rticles of Har by .rticle 1, and the military commission before which he was tried, though
sanctioned, and its @urisdiction sa0ed, by .rticle ':, was not con0ened by 0irtue of the .rticles of Har, but pursuant to
the common law of war+ ;t follows that the .rticles of Har, including .rticles 1: and 2*, were not applicable to
petitionerGs trial, and imposed no restrictions upon the procedure to be followed+ The .rticles left the control o0er the
procedure in such a case where it had pre0iously been 33 with the military command+
"etitioner further urges that, by 0irtue of .rticle 62 of the =ene0a Con0ention of '(1(, 7) Stat+ 18:1, he is entitled to
the benefits afforded by the 1:th and 2*th .rticles of Har to members of our own forces+ .rticle 62 pro0ides:
CSentence may be pronounced against a prisoner of war
"age 21) D+ S+ 1'
only by the same courts and according to the same procedure as in the case of persons belonging to the armed forces
of the detaining "ower+C
Since petitioner is a prisoner of war, and as the 1:th and 2*th .rticles of Har apply to the trial of any person in our
own armed forces, it is said that .rticle 62 re/uires them to be applied in the trial of petitioner+ ,ut we thin$
examination of .rticle 62 in its setting in the Con0ention plainly shows that it refers to sentence Cpronounced against
a prisoner of warC for an offense committed while a prisoner of war, and not for a 0iolation of the law of war
committed while a combatant+
.rticle 62 of the Con0ention appears in part 2, entitled C9udicial Suits,C of Chapter 2, C"enalties .pplicable to "risoners
of Har,C of d ?, C"risonersG 4elations with the .uthorities,C one of the sections of Title ;;;, CCapti0ity+C .ll ta$en
together relate only to the conduct and control of prisoners of war while in capti0ity as such+ Chapter ' of Section ?,
.rticle 71, deals with complaints of prisoners of war because of the conditions of capti0ity+ Chapter 1, .rticles 72 and
77, relates to those of their number chosen by prisoners of war to represent them+
Chapter 2 of Section ?, .rticles 7: through 6), is entitled C"enalties .pplicable to "risoners of Har+C "art ' of that
chapter, .rticles 7: through :2, indicates what acts of prisoners of war committed while prisoners shall be considered
offenses, and defines to some extent the punishment which the detaining power may impose on account of such
offenses+ KFootnote *L "unishment is of two $inds 33 CdisciplinaryC and chanrobles0irtualawlibrary
"age 21) D+ S+ 11
C@udicial,C the latter being the more se0ere+ .rticle :1 re/uires that leniency be exercised in deciding whether an
offense re/uires disciplinary or @udicial punishment+ "art 1 of Chapter 2 is entitled C-isciplinary "unishments,C and
further defines the extent of such punishment and the mode in which it may be imposed+ "art 2, entitled C9udicial
Suits,C in which .rticle 62 is found, describes the procedure by which C@udicialC punishment may be imposed+ The
three parts of Chapter 2, ta$en together, are thus a comprehensi0e description of the substanti0e offenses which
prisoners of war may commit during their imprisonment, of the penalties which may be imposed on account of such
offenses, and of the procedure by which guilt may be ad@udged and sentence pronounced+
He thin$ it clear, from the context of these recited pro0isions, that part 2, and .rticle 62 which it contains, apply only
to @udicial proceedings directed against a prisoner of war for offenses committed while a prisoner of war+ Sectionchanrobles0irtualawlibrary
"age 21) D+ S+ 12
? gi0es no indication that this part was designed to deal with offenses other than those referred to in parts ' and 1 of
chapter 2+
He cannot say that the commission, in admitting e0idence to which ob@ection is now made, 0iolated any act of
Congress, treaty, or military command defining the commissionGs authority+ For reasons already stated, we hold that
the commissionGs rulings on e0idence and on the mode of conducting these proceedings against petitioner are not
re0iewable by the courts, but only by the re0iewing military authorities+ From this 0iewpoint, it is unnecessary to
consider what, in other situations, the Fifth .mendment might re/uire, and as to that, no intimation one way or the
other is to be implied+ 5othing we ha0e said is to be ta$en as indicating any opinion on the /uestion of the wisdom of
considering such e0idence, or whether the action of a military tribunal in admitting e0idence which Congress or
controlling military command has directed to be excluded may be drawn in /uestion by petition for habeas corpus or
prohibition+
>ffe#t of failure to give noti#e of the trial to the 1rote#ting 1o0er. .rticle 68 of the =ene0a Con0ention of 9uly 1),
'(1(, 7) Stat+ 18:', to which the Dnited States and 9apan were signatories, pro0ides that,
C.t the opening of a @udicial proceeding directed against a prisoner of war, the detaining "ower shall ad0ise the
representati0e of the protecting "ower thereof as soon as possible, and always before the date set for the opening of
the trial+C
"etitioner relies on the failure to gi0e the prescribed notice to the protecting power KFootnote (L to establish want of
authority in the commission to proceed with the trial+ chanrobles0irtualawlibrary
"age 21) D+ S+ 17
For reasons already stated, we conclude that .rticle 68 of the =ene0a Con0ention, which appears in part 2, Chapter 2,
Section ?, Title ;;; of the =ene0a Con0ention, applies only to persons who are sub@ected to @udicial proceedings for
offenses committed while prisoners of war+ KFootnote '8L chanrobles0irtualawlibrary
"age 21) D+ S+ 1:
;t thus appears that the order con0ening the commission was a lawful order, that the commission was lawfully
constituted, that petitioner was charged with 0iolation of the law of war, and that the commission had authority to
proceed with the trial, and, in doing so, did not 0iolate any military, statutory, or constitutional command+ He ha0e
considered, but find it unnecessary to discuss, other contentions which we find to be without merit+ He therefore
conclude that the detention of petitioner for trial and his detention upon his con0iction, sub@ect to the prescribed
re0iew by the military authorities, were lawful, and that the petition for certiorari, and lea0e to file in this Court chanrobles0irtualawlibrary
"age 21) D+ S+ 16
petitions for writs of habeas corpus and prohibition should be, and they are
&enie2.
HAMDAN V. R6M#7ELD
#6$REME !O6R O7 HE 6NIED #AE#
&.>-.5 v+ 4D>SF!A-, S!C4!T.4Y <F -!F!5S!, et al+
certiorari to the united states court of appeals for the district of columbia circuit
5o+ 8:g'*7+ .rgued >arch 1*, 1886b-ecided 9une 1(, 1886
"ursuant to Congress^ 9oint 4esolution authoriBing the "resident to huse all necessary and appropriate force against
those nations, organiBations, or persons he determines planned, authoriBed, committed or aidedi the September '',
188', al #aeda terrorist attac$s (.D>F), D+ S+ .rmed Forces in0aded .fghanistan+ -uring the hostilities, in 188',
militia forces captured petitioner &amdan, a Yemeni national, and turned him o0er to the D+ S+ military, which, in
1881, transported him to prison in =uantanamo ,ay, Cuba+ <0er a year later, the "resident deemed &amdan eligible
for trial by military commission for then3unspecified crimes+ .fter another year, he was charged with conspiracy hto
commit [ offenses triable by military commission+i ;n habeas and mandamus petitions, &amdan asserted that the
military commission lac$s authority to try him because (') neither congressional .ct nor the common law of war
supports trial by this commission for conspiracy, an offense that, &amdan says, is not a 0iolation of the law of warF
and (1) the procedures adopted to try him 0iolate basic tenets of military and international law, including the principle
that a defendant must be permitted to see and hear the e0idence against him++
The -istrict Court granted habeas relief and stayed the commission^s proceedings, concluding that the "resident^s
authority to establish military commissions extends only to offenders or offenses triable by such a commission under
the law of warF that such law includes the Third =ene0a Con0entionF that &amdan is entitled to that Con0ention^s full
protections until ad@udged, under it, not to be a prisoner of warF and that, whether or not &amdan is properly
classified a prisoner of war, the commission con0ened to try him was established in 0iolation of both the Dniform Code
of >ilitary 9ustice (DC>9), '8 D+ S+ C+ d*8' et seE., and Common .rticle 2 of the Third =ene0a Con0ention because it
had the power to con0ict based on e0idence the accused would ne0er see or hear+ The -+ C+ Circuit re0ersed+
.lthough it declined the =o0ernment^s in0itation to abstain from considering &amdan^s challenge,
cf+,#hlesinger 0+ Coun#il'an! 718 D+ S+ )2*, the appeals court ruled, on the merits, that &amdan was not entitled to
relief because the =ene0a Con0entions are not @udicially enforceable+ The court also concluded that >? 1arte
Quirin!2') D+ S+ ', foreclosed any separation3of3powers ob@ection to the military commission^s @urisdiction, and that
&amdan^s trial before the commission would 0iolate neither the DC>9 nor .rmed Forces regulations implementing the
=ene0a Con0entions+
<el2= The @udgment is re0ersed, and the case is remanded+
7': F+ 2d 22, re0ersed and remanded+
9ustice Ste0ens deli0ered the opinion of the Court, except as to "arts ? and ?;g-gi0, concluding:+
'+ The =o0ernment^s motion to dismiss, based on the -etainee Treatment .ct of 188: (-T.), is denied+ -T. d'88:(e)
(') pro0ides that hno court [ shall ha0e @urisdiction to hear or consider [ an application for [ habeas corpus filed by
[ an alien detained [ at =uantanamo ,ay+i Section '88:(h)(1) pro0ides that dd'88:(e)(1) and (2)bwhich gi0e the
-+ C+ Circuit hexclusi0ei @urisdiction to re0iew the final decisions of, respecti0ely, combatant status re0iew tribunals
and military commissionsbhshall apply with respect to any claim whose re0iew is [ pending oni the -T.^s effecti0e
date, as was &amdan^s case+ The =o0ernment^s argument that dd'88:(e)(') and (h) repeal this Court^s @urisdiction to
re0iew the decision below is rebutted by ordinary principles of statutory construction+ . negati0e inference may be
drawn from Congress^ failure to include d'88:(e)(') within the scope of d'88:(h)(1)+ Cf+, e.g.! @in2h 0+ (ur1h! :1'
D+ S+ 218, 228+ h;f [ Congress was reasonably concerned to ensure that Kdd'88:(e)(1) and (2)L be applied to
pending cases, it should ha0e been @ust as concerned about Kd'88:(e)(')L, unless it had the different intent that the
latter KsectionL not be applied to the general run of pending cases+i 62.! at 21(+ ;f anything, the e0idence of deliberate
omission is stronger here than it was in @in2h+ The legislati0e history shows that Congress not only considered the
respecti0e temporal reaches of dd'88:(e)('), (1), and (2) together at e0ery stage, but omitted paragraph (') from its
directi0e only after ha0ing reCe#te2 earlier proposed 0ersions of the statute that would ha0e included what is now
paragraph (') within that directi0e^s scope+ Congress^ re@ection of the 0ery language that would ha0e achie0ed the
result the =o0ernment urges weighs hea0ily against the =o0ernment^s interpretation+ See &oe 0+ Chao! :78 D+ S+
6'7, 61'g612+ "p+ )g18+
1+ The =o0ernment argues unpersuasi0ely that abstention is appropriate under Coun#il'an! which concluded that, as
a matter of comity, federal courts should normally abstain from inter0ening in pending courts3martial against ser0ice
members, see 718 D+ S+, at )78+ 5either of the comity considerations Coun#il'an identified weighs in fa0or of
abstention here+ First, the assertion that military discipline and, therefore, the .rmed Forces^ efficient operation, are
best ser0ed if the military @ustice system acts without regular interference from ci0ilian courts, see i2.! at ):1, is inapt
because &amdan is not a ser0ice member+ Second, the 0iew that federal courts should respect the balance Congress
struc$ when it created han integrated system of military courts and re0iew proceduresi is inapposite, since the
tribunal con0ened to try &amdan is not part of that integrated system+ 4ather than Coun#il'an! the most rele0ant
precedent is >? 1arte Quirin, where the Court, far from abstaining pending the conclusion of ongoing military
proceedings, expedited its re0iew because of (') the public importance of the /uestions raised, (1) the Court^s duty, in
both peace and war, to preser0e the constitutional safeguards of ci0il liberty, and (2) the public interest in a decision
on those /uestions without delay, 2') D+ S+ at '(+ The =o0ernment has identified no counter0ailing interest that
would permit federal courts to depart from their general duty to exercise the @urisdiction Congress has conferred on
them+ "p+ 18g1:+
2+ The military commission at issue is not expressly authoriBed by any congressional .ct+ Quirin held that Congress
had, through .rticle of Har ':, sanctioned the use of military commissions to try offenders or offenses against the law
of war+ 2') D+ S+, at 1*+ DC>9 .rt+ 1', which is substantially identical to the old .rt+ ':, reads: hThe @urisdiction KofL
courts3martial shall not be construed as depri0ing military commissions [ of concurrent @urisdiction in respect of
offenders or offenses that by statute or by the law of war may be tried by such [ commissions+i '8 D+ S+ C+ d*1'+
Contrary to the =o0ernment^s assertion, e0en Quirin did not 0iew that authoriBation as a sweeping mandate for the
"resident to in0o$e military commissions whene0er he deems them necessary+ 4ather, Quirin recogniBed that
Congress had simply preser0ed what power, under the Constitution and the common law of war, the "resident already
had to con0ene military commissionsbwith the express condition that he and those under his command comply with
the law of war+ See 2') D+ S+, at 1*g1(+ 5either the .D>F nor the -T. can be read to pro0ide specific, o0erriding
authoriBation for the commission con0ened to try &amdan+ .ssuming the .D>F acti0ated the "resident^s war powers,
see <a'2i 0+ Ru'sfel2, :71 D+ S+ :8), and that those powers include authority to con0ene military commissions in
appropriate circumstances, see, e.g.! i2., at :'*, there is nothing in the .D>F^s text or legislati0e history e0en hinting
that Congress intended to expand or alter the authoriBation set forth in DC>9 .rt+ 1'+ Cf+ >? 1arte Ierger! * Hall+ *:,
'8:+ Ai$ewise, the -T. cannot be read to authoriBe this commission+ .lthough the -T., unli$e either .rt+ 1' or the
.D>F, was enacted after the "resident con0ened &amdan^s commission, it contains no language authoriBing that
tribunal or any other at =uantanamo ,ay+ Together, the DC>9, the .D>F, and the -T. at most ac$nowledge a general
"residential authority to con0ene military commissions in circumstances where @ustified under the Constitution and
laws, including the law of war+ .bsent a more specific congressional authoriBation, this Court^s tas$ is, as it was
in Quirin, to decide whether &amdan^s military commission is so @ustified+ "p+ 1:g28+
7+ The military commission at issue lac$s the power to proceed because its structure and procedures 0iolate both the
DC>9 and the four =ene0a Con0entions signed in '(7(+ "p+ 7(g)1++
(a) The commission^s procedures, set forth in Commission <rder 5o+ ', pro0ide, among other things, that an accused
and his ci0ilian counsel may be excluded from, and precluded from e0er learning what e0idence was presented during,
any part of the proceeding the official who appointed the commission or the presiding officer decides to hclose+i
=rounds for closure include the protection of classified information, the physical safety of participants and witnesses,
the protection of intelligence and law enforcement sources, methods, or acti0ities, and hother national security
interests+i .ppointed military defense counsel must be pri0y to these closed sessions, but may, at the presiding
officer^s discretion, be forbidden to re0eal to the client what too$ place therein+ .nother stri$ing feature is that the
rules go0erning &amdan^s commission permit the admission of an e0idence that, in the presiding officer^s opinion,
would ha0e probati0e 0alue to a reasonable person+ >oreo0er, the accused and his ci0ilian counsel may be denied
access to classified and other hprotected information,i so long as the presiding officer concludes that the e0idence is
hprobati0ei and that its admission without the accused^s $nowledge would not result in the denial of a full and fair
trial+ "p+ 7(g:1++
(b) The =o0ernment ob@ects to this Court^s consideration of a procedural challenge at this stage on the grounds,inter
alia! that &amdan will be able to raise such a challenge following a final decision under the -T., and that there is no
basis to presume, before the trial has e0en commenced, that it will not be conducted in good faith and according to
law+ These contentions are unsound+ First, because &amdan apparently is not sub@ect to the death penalty (at least as
matters now stand) and may recei0e a prison sentence shorter than '8 years, he has no automatic right to federal3
court re0iew of the commission^s hfinal decisioni under -T. d'88:(e)(2)+ Second, there is a basis to presume that the
procedures employed during &amdan^s trial will 0iolate the law: &e will be, and in2ee2 alrea2 has been, excluded
from his own trial+ Thus, re0iew of the procedures in ad0ance of a hfinal decisioni is appropriate+ "p+ :1g:2++
(c) ,ecause DC>9 .rticle 26 has not been complied with here, the rules specified for &amdan^s commission trial are
illegal+ The procedures go0erning such trials historically ha0e been the same as those go0erning courts3martial+
.lthough this uniformity principle is not inflexible and does not preclude all departures from courts3martial procedures,
any such departure must be tailored to the exigency that necessitates it+ That understanding is reflected in .rt+ 26(b),
which pro0ides that the procedural rules the "resident promulgates for courts3martial and military commissions ali$e
must be huniform insofar as practicable,i '8 D+ S+ C+ d*26(b)+ The hpracticabilityi determination the "resident has
made is insufficient to @ustify 0ariances from the procedures go0erning courts3martial+ The "resident here has
determined, pursuant to the re/uirement of %rt. *6(a)! that it is impracticable to apply the rules and principles of law
that go0ern hthe trial of criminal cases in the Dnited States district courtsi to &amdan^s commission+ The "resident
has not, howe0er, made a similar official determination that it is impracticable to apply the rules for courts3martial+
.nd e0en if subsection (b)^s re/uirements could be satisfied without an official practicability determination, that
subsection^s re/uirements are not satisfied here+ 5othing in the record demonstrates that it would be impracticable to
apply court3martial rules here+ There is no suggestion, e.g.! of any logistical difficulty in securing properly sworn and
authenticated e0idence or in applying the usual principles of rele0ance and admissibility+ ;t is not e0ident why the
danger posed by international terrorism, considerable though it is, should re/uire, in the case of &amdan^s trial, any
0ariance from the courts3martial rules+ The absence of any showing of impracticability is particularly disturbing when
considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not @ust
by the >anual for Courts3>artial but also by the DC>9 itself: The right to be present+ See '8 D+ S+ C+ .+ d*2((c)+
,ecause the @ettisoning of so basic a right cannot lightly be excused as hpracticable,i the courts3martial rules must
apply+ Since it is undisputed that Commission <rder 5o+ ' de0iates in many significant respects from those rules, it
necessarily 0iolates .rt+ 26(b)+ "p+ :2g61++
(d) The procedures adopted to try &amdan also 0iolate the =ene0a Con0entions+ The -+ C+ Circuit dismissed
&amdan^s challenge in this regard on the grounds, inter alia! that the Con0entions are not @udicially enforceable and
that, in any e0ent, &amdan is not entitled to their protections+ 5either of these grounds is persuasi0e+ "p+ 61g6*++
(i) The appeals court relied on a statement in ;ohnson 0+ >isentrager! 22( D+ S+ )62, )*(, n+ '7, suggesting that
this Court lac$ed power e0en to consider the merits of a Con0ention argument because the political and military
authorities had sole responsibility for obser0ing and enforcing prisoners^ rights under the Con0ention+
&owe0er,>isentrager does not control here because, regardless of the nature of the rights conferred on &amdan,
cf+ 5nite2 ,tates 0+ Raus#her! ''( D+ S+ 78), they are indisputably part of the law of war, see <a'2i! :71 D+ S+, at
:18g:1', compliance with which is the condition upon which DC>9 .rt+ 1' authority is granted+ "p+ 62g6:++
(ii) .lternati0ely, the appeals court agreed with the =o0ernment that the Con0entions do not apply because &amdan
was captured during the war with al #aeda, which is not a Con0ention signatory, and that conflict is distinct from the
war with signatory .fghanistan+ The Court need not decide the merits of this argument because there is at least one
pro0ision of the =ene0a Con0entions that applies here e0en if the rele0ant conflict is not between signatories+
Common .rticle 2, which appears in all four Con0entions, pro0ides that, in a hconflict not of an international character
occurring in the territory of one of the &igh Contracting "arties Ki.e.! signatoriesL, each "arty to the conflict shall be
bound to apply, as a minimum,i certain pro0isions protecting hKpLersons [ placed hors 2e #o'bat by [ detention,i
including a prohibition on hthe passing of sentences [ without pre0ious @udgment [ by a regularly constituted court
affording all the @udicial guarantees [ recogniBed as indispensable by ci0iliBed peoples+i The -+ C+ Circuit ruled
Common .rticle 2 inapplicable to &amdan because the conflict with al #aeda is international in scope and thus not a
hconflict not of an international character+ i That reasoning is erroneous+ That the /uoted phrase bears its literal
meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common .rticle 1,
which limits its own application to any armed conflict between signatories and pro0ides that signatories must abide by
all terms of the Con0entions e0en if another party to the conflict is a nonsignatory, so long as the nonsignatory
haccepts and appliesi those terms+ Common .rticle 2, by contrast, affords some minimal protection, falling short of
full protection under the Con0entions, to indi0iduals associated with neither a signatory nor e0en a nonsignatory who
are in0ol0ed in a conflict hin the territory ofi a signatory+ The latter $ind of conflict does not in0ol0e a clash between
nations (whether signatories or not)+ "p+ 6:g6*++
(iii) Hhile Common .rticle 2 does not define its hregularly constituted courti phrase, other sources define the words
to mean an hordinary military courKtLi that is hestablished and organiBed in accordance with the laws and procedures
already in force in a country+i The regular military courts in our system are the courts3martial established by
congressional statute+ .t a minimum, a military commission can be hregularly constitutedi only if some practical need
explains de0iations from court3martial practice+ 5o such need has been demonstrated here+ "p+ 6(g)8++
(i0) Common .rticle 2^s re/uirements are general, crafted to accommodate a wide 0ariety of legal systems, but they
are reEuire'ents nonetheless+ The commission con0ened to try &amdan does not meet those re/uirements+ "+ )1++
(d) !0en assuming that &amden is a dangerous indi0idual who would cause great harm or death to innocent ci0ilians
gi0en the opportunity, the !xecuti0e ne0ertheless must comply with the pre0ailing rule of law in underta$ing to try
him and sub@ect him to criminal punishment+ "+ )1+
9ustice Ste0ens, @oined by 9ustice Souter, 9ustice =insburg, and 9ustice ,reyer, concluded in "arts ? and ?;g-gi0:+
'+ The =o0ernment has not charged &amdan with an hoffense [ that by the law of war may be tried by military
commission,i '8 D+ S+ C+ d*1'+ <f the three sorts of military commissions used historically, the law3of3war type used
in Quirin and other cases is the only model a0ailable to try &amdan+ .mong the preconditions, incorporated in .rticle
of Har ': and, later, DC>9 .rt+ 1', for such a tribunal^s exercise of @urisdiction are, inter alia! that it must be limited
to trying offenses committed within the con0ening commander^s field of command, i.e.! within the theater of war, and
that the offense charged must ha0e been committed during, not before or after, the war+ &ere, &amdan is not alleged
to ha0e committed any o0ert act in a theater of war or on any specified date after September '', 188'+ >ore
importantly, the offense alleged is not triable by law3of3war military commission+ .lthough the common law of war
may render triable by military commission certain offenses not defined by statute, Quirin! 2') D+ S+, at 28, the
precedent for doing so with respect to a particular offense must be plain and unambiguous, cf+, e.g.! @oving 0+ 5nite2
,tates! :') D+ S+ )7*, ))'+ That burden is far from satisfied here+ The crime of hconspiracyi has rarely if e0er been
tried as such in this country by any law3of3war military commission not exercising some other form of @urisdiction, and
does not appear in either the =ene0a Con0entions or the &ague Con0entionsbthe ma@or treaties on the law of war+
>oreo0er, that conspiracy is not a recogniBed 0iolation of the law of war is confirmed by other international sources,
including, e.g.! the ;nternational >ilitary Tribunal at 5uremberg, which pointedly refused to recogniBe conspiracy to
commit war crimes as such a 0iolation+ ,ecause the conspiracy charge does not support the commission^s @urisdiction,
the commission lac$s authority to try &amdan+ "p+ 28g7(+
1+ The phrase hall the guarantees [ recogniBed as indispensable by ci0iliBed peoplesi in Common .rticle 2 of the
=ene0a Con0entions is not defined, but it must be understood to incorporate at least the barest of the trial protections
recogniBed by customary international law+ The procedures adopted to try &amdan de0iate from those go0erning
courts3martial in ways not @ustified by practical need, and thus fail to afford the re/uisite guarantees+ >oreo0er,
0arious pro0isions of Commission <rder 5o+ ' dispense with the principles, which are indisputably part of customary
international law, that an accused must, absent disrupti0e conduct or consent, be present for his trial and must be
pri0y to the e0idence against him+ "p+ )8g)1+
9ustice %ennedy, agreeing that &amdan^s military commission is unauthoriBed under the Dniform Code of >ilitary
9ustice, '8 D+ S+ C+ dd*26 and *1', and the =ene0a Con0entions, concluded that there is therefore no need to decide
whether Common .rticle 2 of the Con0entions re/uires that the accused ha0e the right to be present at all stages of a
criminal trial or to address the 0alidity of the conspiracy charge against &amdan+ "p+ ')g'(+
Ste0ens, ;., announced the @udgment of the Court and deli0ered the opinion of the Court with respect to "arts ;
through ;?, ?; through ?;g-giii, ?;g-g0, and ?;;, in which %ennedy, Souter, =insburg, and ,reyer, ;;.! @oined, and an
opinion with respect to "arts ? and ?;g-gi0, in which Souter, =insburg, and ,reyer, ;;.! @oined+ ,reyer, ;., filed a
concurring opinion, in which %ennedy, Souter, and =insburg, ;;.! @oined+ %ennedy, ;., filed an opinion concurring in
part, in which Souter, =insburg, and ,reyer, ;;.! @oined as to "arts ; and ;;+ Scalia, ;., filed a dissenting opinion, in
which Thomas and .lito, ;;.! @oined+ Thomas, ;., filed a dissenting opinion, in which Scalia, ;., @oined, and in which
.lito, ;., @oined as to all but "arts ;, ;;gCg', and ;;;g,g1+ .lito, ;., filed a dissenting opinion, in which Scalia and
Thomas, ;;.! @oined as to "arts ; through ;;;+ 4oberts, C.;., too$ no part in the consideration or decision of the case+