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ARTICLE III - BILL OF RIGHTS

Section 1: Due Process of Law

Ichong vs. Hernandez [G.R. No. L-7955, May 31,1957]

Philippine Phosphate Fertilizer Corp. vs. Torres [G.R. No. 98050, March 17, 1994]

Ynot vs. Intermediate Appelate Court [G.R. No.74457, March 20, 1987]

Alonte vs. Savellano [G.R. No. 131652, March 9,1998]

Aniag vs. COMELEC [G.R. No. 104961, October 7,1994]

Philippine Communications Satellite Corp. vs. Alcuaz [G.R. No. 84818, December 18,
1989]

Ang Tibay vs. Court of Industrial Relations [G.R.No. 46496, February 27, 1940]

Ateneo de Manila vs. Capulong [G.R. No. 99327,May 27, 1993]





















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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7995 May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and
partnerships adversely affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of
Manila, respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent
Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J .:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative
enactment, fundamental and far-reaching in significance. The enactment poses questions of due
process, police power and equal protection of the laws. It also poses an important issue of fact, that is
whether the conditions which the disputed law purports to remedy really or actually exist. Admittedly
springing from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen and
country from the alien retailer. Through it, and within the field of economy it regulates, Congress
attempts to translate national aspirations for economic independence and national security, rooted in the
drive and urge for national survival and welfare, into a concrete and tangible measures designed to free
the national retailer from the competing dominance of the alien, so that the country and the nation may
be free from a supposed economic dependence and bondage. Do the facts and circumstances justify
the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the
retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of
the Philippines, and against associations, partnerships, or corporations the capital of which are not
wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an
exception from the above prohibition in favor of aliens actually engaged in said business on May 15,
1954, who are allowed to continue to engaged therein, unless their licenses are forfeited in accordance
with the law, until their death or voluntary retirement in case of natural persons, and for ten years after
the approval of the Act or until the expiration of term in case of juridical persons; (3) an exception
therefrom in favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture of
licenses (to engage in the retail business) for violation of the laws on nationalization, control weights and
measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition against
the establishment or opening by aliens actually engaged in the retail business of additional stores or
branches of retail business, (6) a provision requiring aliens actually engaged in the retail business to
present for registration with the proper authorities a verified statement concerning their businesses,
giving, among other matters, the nature of the business, their assets and liabilities and their offices and
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principal offices of judicial entities; and (7) a provision allowing the heirs of aliens now engaged in the
retail business who die, to continue such business for a period of six months for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships
adversely affected by the provisions of Republic Act. No. 1180, brought this action to obtain a judicial
declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other persons
acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner
attacks the constitutionality of the Act, contending that: (1) it denies to alien residents the equal
protection of the laws and deprives of their liberty and property without due process of law ; (2) the
subject of the Act is not expressed or comprehended in the title thereof; (3) the Act violates international
and treaty obligations of the Republic of the Philippines; (4) the provisions of the Act against the
transmission by aliens of their retail business thru hereditary succession, and those requiring 100%
Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate the
spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed
in the valid exercise of the police power of the State, which exercise is authorized in the Constitution in
the interest of national economic survival; (2) the Act has only one subject embraced in the title; (3) no
treaty or international obligations are infringed; (4) as regards hereditary succession, only the form is
affected but the value of the property is not impaired, and the institution of inheritance is only of statutory
origin.
IV. Preliminary consideration of legal principles involved
a. The police power.
There is no question that the Act was approved in the exercise of the police power, but petitioner claims
that its exercise in this instance is attended by a violation of the constitutional requirements of due
process and equal protection of the laws. But before proceeding to the consideration and resolution of
the ultimate issue involved, it would be well to bear in mind certain basic and fundamental, albeit
preliminary, considerations in the determination of the ever recurrent conflict between police power and
the guarantees of due process and equal protection of the laws. What is the scope of police power, and
how are the due process and equal protection clauses related to it? What is the province and power of
the legislature, and what is the function and duty of the courts? These consideration must be clearly and
correctly understood that their application to the facts of the case may be brought forth with clarity and
the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has become almost impossible to
limit its sweep. As it derives its existence from the very existence of the State itself, it does not need to
be expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and
as such it is the most positive and active of all governmental processes, the most essential, insistent and
illimitable. Especially is it so under a modern democratic framework where the demands of society and
of nations have multiplied to almost unimaginable proportions; the field and scope of police power has
become almost boundless, just as the fields of public interest and public welfare have become almost
all-embracing and have transcended human foresight. Otherwise stated, as we cannot foresee the
needs and demands of public interest and welfare in this constantly changing and progressive world, so
we cannot delimit beforehand the extent or scope of police power by which and through which the State
seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the scope or extent
of the police power of the State; what they do is to set forth the limitations thereof. The most important of
these are the due process clause and the equal protection clause.
b. Limitations on police power.
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The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property without due
process of law, nor any person be denied the equal protection of the laws. (Article III,
Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application, without
regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause.
The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is
limited either in the object to which it is directed or by territory within which is to operate. It does not
demand absolute equality among residents; it merely requires that all persons shall be treated alike,
under like circumstances and conditions both as to privileges conferred and liabilities enforced. The
equal protection clause is not infringed by legislation which applies only to those persons falling within a
specified class, if it applies alike to all persons within such class, and reasonable grounds exists for
making a distinction between those who fall within such class and those who do not. (2 Cooley,
Constitutional Limitations, 824-825.)
d. The due process clause.
The due process clause has to do with the reasonableness of legislation enacted in pursuance of the
police power. Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably
necessary for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or
oppressive? Is there sufficient foundation or reason in connection with the matter involved; or has there
not been a capricious use of the legislative power? Can the aims conceived be achieved by the means
used, or is it not merely an unjustified interference with private interest? These are the questions that we
ask when the due process test is applied.
The conflict, therefore, between police power and the guarantees of due process and equal protection of
the laws is more apparent than real. Properly related, the power and the guarantees are supposed to
coexist. The balancing is the essence or, shall it be said, the indispensable means for the attainment of
legitimate aspirations of any democratic society. There can be no absolute power, whoever exercise it,
for that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and
anarchy. So the State can deprive persons of life, liberty and property, provided there is due process of
law; and persons may be classified into classes and groups, provided everyone is given the equal
protection of the law. The test or standard, as always, is reason. The police power legislation must be
firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes
and means. And if distinction and classification has been made, there must be a reasonable basis for
said distinction.
e. Legislative discretion not subject to judicial review.
Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be
overlooked, in the first place, that the legislature, which is the constitutional repository of police power
and exercises the prerogative of determining the policy of the State, is by force of circumstances
primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in
the exercise of the police power, or of the measures adopted to implement the public policy or to achieve
public interest. On the other hand, courts, although zealous guardians of individual liberty and right, have
nevertheless evinced a reluctance to interfere with the exercise of the legislative prerogative. They have
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done so early where there has been a clear, patent or palpable arbitrary and unreasonable abuse of the
legislative prerogative. Moreover, courts are not supposed to override legitimate policy, and courts never
inquire into the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly into the issue involved. If
the disputed legislation were merely a regulation, as its title indicates, there would be no question that it
falls within the legitimate scope of legislative power. But it goes further and prohibits a group of
residents, the aliens, from engaging therein. The problem becomes more complex because its subject is
a common, trade or occupation, as old as society itself, which from the immemorial has always been
open to residents, irrespective of race, color or citizenship.
a. Importance of retail trade in the economy of the nation.
In a primitive economy where families produce all that they consume and consume all that they produce,
the dealer, of course, is unknown. But as group life develops and families begin to live in communities
producing more than what they consume and needing an infinite number of things they do not produce,
the dealer comes into existence. As villages develop into big communities and specialization in
production begins, the dealer's importance is enhanced. Under modern conditions and standards of
living, in which man's needs have multiplied and diversified to unlimited extents and proportions, the
retailer comes as essential as the producer, because thru him the infinite variety of articles, goods and
needed for daily life are placed within the easy reach of consumers. Retail dealers perform the functions
of capillaries in the human body, thru which all the needed food and supplies are ministered to members
of the communities comprising the nation.
There cannot be any question about the importance of the retailer in the life of the community. He
ministers to the resident's daily needs, food in all its increasing forms, and the various little gadgets and
things needed for home and daily life. He provides his customers around his store with the rice or corn,
the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell, even the
needle and the thread to sew them or darn the clothes that wear out. The retailer, therefore, from the
lowly peddler, the owner of a small sari-sari store, to the operator of a department store or, a
supermarket is so much a part of day-to-day existence.
b. The alien retailer's trait.
The alien retailer must have started plying his trades in this country in the bigger centers of population
(Time there was when he was unknown in provincial towns and villages). Slowly but gradually be
invaded towns and villages; now he predominates in the cities and big centers of population. He even
pioneers, in far away nooks where the beginnings of community life appear, ministering to the daily
needs of the residents and purchasing their agricultural produce for sale in the towns. It is an undeniable
fact that in many communities the alien has replaced the native retailer. He has shown in this trade,
industry without limit, and the patience and forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and
insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and
forgives. The community takes note of him, as he appears to be harmless and extremely useful.
c. Alleged alien control and dominance.
There is a general feeling on the part of the public, which appears to be true to fact, about the controlling
and dominant position that the alien retailer holds in the nation's economy. Food and other essentials,
clothing, almost all articles of daily life reach the residents mostly through him. In big cities and centers
of population he has acquired not only predominance, but apparent control over distribution of almost all
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kinds of goods, such as lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of
other goods and articles. And were it not for some national corporations like the Naric, the Namarco, the
Facomas and the Acefa, his control over principal foods and products would easily become full and
complete.
Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said
that the fear is unfounded and the threat is imagined; in another, it is charged that the law is merely the
result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an element of
control; also so many unmanageable factors in the retail business make control virtually impossible. The
first argument which brings up an issue of fact merits serious consideration. The others are matters of
opinion within the exclusive competence of the legislature and beyond our prerogative to pass upon and
decide.
The best evidence are the statistics on the retail trade, which put down the figures in black and white.
Between the constitutional convention year (1935), when the fear of alien domination and control of the
retail trade already filled the minds of our leaders with fears and misgivings, and the year of the
enactment of the nationalization of the retail trade act (1954), official statistics unmistakably point out to
the ever-increasing dominance and control by the alien of the retail trade, as witness the following
tables:

Assets Gross Sales
Year and
Retailers
Nationality
No.-
Establishments
Pesos
Per cent
Distribution
Pesos
Per cent
Distribution
1941:


Filipino
..........
106,671 200,323,138 55.82 174,181,924 51.74

Chinese
...........
15,356 118,348,692 32.98 148,813,239 44.21

Others
............
1,646 40,187,090 11.20 13,630,239 4.05
1947:


Filipino
..........
111,107 208,658,946 65.05 279,583,333 57.03

Chinese
...........
13,774 106,156,218 33.56 205,701,134 41.96

Others
...........
354 8,761,260 .49 4,927,168 1.01
1948: (Census)


Filipino
..........
113,631 213,342,264 67.30 467,161,667 60.51

Chinese
..........
12,087 93,155,459 29.38 294,894,227 38.20

Others
..........
422 10,514,675 3.32 9,995,402 1.29
1949:


Filipino
..........
113,659 213,451,602 60.89 462,532,901 53.47

Chinese 16,248 125,223,336 35.72 392,414,875 45.36
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..........

Others
..........
486 12,056,365 3.39 10,078,364 1.17
1951:


Filipino
.........
119,352 224,053,620 61.09 466,058,052 53.07

Chinese
..........
17,429 134,325,303 36.60 404,481,384 46.06

Others
..........
347 8,614,025 2.31 7,645,327 87

AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT
Year and Retailer's
Nationality
Item
Assets
(Pesos)
Gross
Sales
(Pesos)
1941:


Filipino ............................................. 1,878 1,633

Chinese
..............................................
7,707 9,691

Others
...............................................
24,415 8,281
1947:


Filipino ............................................. 1,878 2,516

Chinese ........................................... 7,707 14,934

Others .............................................. 24,749 13,919
1948: (Census)


Filipino ............................................. 1,878 4,111

Chinese
.............................................
7,707 24,398

Others .............................................. 24,916 23,686
1949:


Filipino ............................................. 1,878 4,069

Chinese
..............................................
7,707 24,152

Others .............................................. 24,807 20,737
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1951:


Filipino ............................................. 1,877 3,905

Chinese
.............................................
7,707 33,207

Others
...............................................
24,824 22,033
(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross sales, alien participation
has steadily increased during the years. It is true, of course, that Filipinos have the edge in the number
of retailers, but aliens more than make up for the numerical gap through their assests and gross sales
which average between six and seven times those of the very many Filipino retailers. Numbers in
retailers, here, do not imply superiority; the alien invests more capital, buys and sells six to seven times
more, and gains much more. The same official report, pointing out to the known predominance of foreign
elements in the retail trade, remarks that the Filipino retailers were largely engaged in minor retailer
enterprises. As observed by respondents, the native investment is thinly spread, and the Filipino retailer
is practically helpless in matters of capital, credit, price and supply.
d. Alien control and threat, subject of apprehension in Constitutional convention.
It is this domination and control, which we believe has been sufficiently shown to exist, that is the
legislature's target in the enactment of the disputed nationalization would never have been adopted. The
framers of our Constitution also believed in the existence of this alien dominance and control when they
approved a resolution categorically declaring among other things, that "it is the sense of the Convention
that the public interest requires the nationalization of the retail trade; . . . ." (II Aruego, The Framing of
the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago;
and the events since then have not been either pleasant or comforting. Dean Sinco of the University of
the Philippines College of Law, commenting on the patrimony clause of the Preamble opines that the
fathers of our Constitution were merely translating the general preoccupation of Filipinos "of the dangers
from alien interests that had already brought under their control the commercial and other economic
activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the
members of the constitutional convention for the economic life of the citizens, in connection with the
nationalistic provisions of the Constitution, he says:
But there has been a general feeling that alien dominance over the economic life of the
country is not desirable and that if such a situation should remain, political independence
alone is no guarantee to national stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the national economy. Moreover, it is but
of recent formation and hence, largely inexperienced, timid and hesitant. Under such
conditions, the government as the instrumentality of the national will, has to step in and
assume the initiative, if not the leadership, in the struggle for the economic freedom of
the nation in somewhat the same way that it did in the crusade for political freedom. Thus
. . . it (the Constitution) envisages an organized movement for the protection of the nation
not only against the possibilities of armed invasion but also against its economic
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subjugation by alien interests in the economic field. (Phil. Political Law by Sinco, 10th
ed., p. 476.)
Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen,
manufacturers and producers believe so; they fear the dangers coming from alien control, and they
express sentiments of economic independence. Witness thereto is Resolution No. 1, approved on July
18, 1953, of the Fifth National convention of Filipino Businessmen, and a similar resolution, approved on
March 20, 1954, of the Second National Convention of Manufacturers and Producers. The man in the
street also believes, and fears, alien predominance and control; so our newspapers, which have
editorially pointed out not only to control but to alien stranglehold. We, therefore, find alien domination
and control to be a fact, a reality proved by official statistics, and felt by all the sections and groups that
compose the Filipino community.
e. Dangers of alien control and dominance in retail.
But the dangers arising from alien participation in the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action and thorough organization, alien
retailers and merchants can act in such complete unison and concert on such vital matters as the fixing
of prices, the determination of the amount of goods or articles to be made available in the market, and
even the choice of the goods or articles they would or would not patronize or distribute, that fears of
dislocation of the national economy and of the complete subservience of national economy and of the
consuming public are not entirely unfounded. Nationals, producers and consumers alike can be placed
completely at their mercy. This is easily illustrated. Suppose an article of daily use is desired to be
prescribed by the aliens, because the producer or importer does not offer them sufficient profits, or
because a new competing article offers bigger profits for its introduction. All that aliens would do is to
agree to refuse to sell the first article, eliminating it from their stocks, offering the new one as a
substitute. Hence, the producers or importers of the prescribed article, or its consumers, find the article
suddenly out of the prescribed article, or its consumers, find the article suddenly out of circulation.
Freedom of trade is thus curtailed and free enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of alien
domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within
judicial notice, which courts of justice may not properly overlook or ignore in the interests of truth and
justice, that there exists a general feeling on the part of the public that alien participation in the retail
trade has been attended by a pernicious and intolerable practices, the mention of a few of which would
suffice for our purposes; that at some time or other they have cornered the market of essential
commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods to the inconvenience and prejudice of
the consuming public, so much so that the Government has had to establish the National Rice and Corn
Corporation to save the public from their continuous hoarding practices and tendencies; that they have
violated price control laws, especially on foods and essential commodities, such that the legislature had
to enact a law (Sec. 9, Republic Act No. 1168), authorizing their immediate and automatic deportation
for price control convictions; that they have secret combinations among themselves to control prices,
cheating the operation of the law of supply and demand; that they have connived to boycott honest
merchants and traders who would not cater or yield to their demands, in unlawful restraint of freedom of
trade and enterprise. They are believed by the public to have evaded tax laws, smuggled goods and
money into and out of the land, violated import and export prohibitions, control laws and the like, in
derision and contempt of lawful authority. It is also believed that they have engaged in corrupting public
officials with fabulous bribes, indirectly causing the prevalence of graft and corruption in the
Government. As a matter of fact appeals to unscrupulous aliens have been made both by the
Government and by their own lawful diplomatic representatives, action which impliedly admits a
prevailing feeling about the existence of many of the above practices.
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The circumstances above set forth create well founded fears that worse things may come in the future.
The present dominance of the alien retailer, especially in the big centers of population, therefore,
becomes a potential source of danger on occasions of war or other calamity. We do not have here in this
country isolated groups of harmless aliens retailing goods among nationals; what we have are well
organized and powerful groups that dominate the distribution of goods and commodities in the
communities and big centers of population. They owe no allegiance or loyalty to the State, and the State
cannot rely upon them in times of crisis or emergency. While the national holds his life, his person and
his property subject to the needs of his country, the alien may even become the potential enemy of the
State.
f. Law enacted in interest of national economic survival and security.
We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not
the product of racial hostility, prejudice or discrimination, but the expression of the legitimate desire and
determination of the people, thru their authorized representatives, to free the nation from the economic
situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The law is
clearly in the interest of the public, nay of the national security itself, and indisputably falls within the
scope of police power, thru which and by which the State insures its existence and security and the
supreme welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. The next question that now poses solution is, Does
the law deny the equal protection of the laws? As pointed out above, the mere fact of alienage is the root
and cause of the distinction between the alien and the national as a trader. The alien resident owes
allegiance to the country of his birth or his adopted country; his stay here is for personal convenience; he
is attracted by the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate nor
immoral, but he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he
temporarily stays and makes his living, or of that spirit of regard, sympathy and consideration for his
Filipino customers as would prevent him from taking advantage of their weakness and exploiting them.
The faster he makes his pile, the earlier can the alien go back to his beloved country and his beloved kin
and countrymen. The experience of the country is that the alien retailer has shown such utter disregard
for his customers and the people on whom he makes his profit, that it has been found necessary to
adopt the legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he never really makes a genuine contribution
to national income and wealth. He undoubtedly contributes to general distribution, but the gains and
profits he makes are not invested in industries that would help the country's economy and increase
national wealth. The alien's interest in this country being merely transient and temporary, it would indeed
be ill-advised to continue entrusting the very important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out above, their
secret manipulations of stocks of commodities and prices, their utter disregard of the welfare of their
customers and of the ultimate happiness of the people of the nation of which they are mere guests,
which practices, manipulations and disregard do not attend the exercise of the trade by the nationals,
show the existence of real and actual, positive and fundamental differences between an alien and a
national which fully justify the legislative classification adopted in the retail trade measure. These
differences are certainly a valid reason for the State to prefer the national over the alien in the retail
trade. We would be doing violence to fact and reality were we to hold that no reason or ground for a
legitimate distinction can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction.
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The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual
and real, furnish sufficient grounds for legislative classification of retail traders into nationals and aliens.
Some may disagree with the wisdom of the legislature's classification. To this we answer, that this is the
prerogative of the law-making power. Since the Court finds that the classification is actual, real and
reasonable, and all persons of one class are treated alike, and as it cannot be said that the classification
is patently unreasonable and unfounded, it is in duty bound to declare that the legislature acted within its
legitimate prerogative and it can not declare that the act transcends the limit of equal protection
established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications among persons is
not curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide
scope of discretion, and a law can be violative of the constitutional limitation only when the classification
is without reasonable basis. In addition to the authorities we have earlier cited, we can also refer to the
case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined
the application of equal protection clause to a law sought to be voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from
the state the power to classify in the adoption of police laws, but admits of the exercise of
the wide scope of discretion in that regard, and avoids what is done only when it is
without any reasonable basis, and therefore is purely arbitrary. 2. A classification having
some reasonable basis does not offend against that clause merely because it is not
made with mathematical nicety, or because in practice it results in some inequality. 3.
When the classification in such a law is called in question, if any state of facts reasonably
can be conceived that would sustain it, the existence of that state of facts at the time the
law was enacted must be assumed. 4. One who assails the classification in such a law
must carry the burden of showing that it does not rest upon any reasonable basis but is
essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification.
The question as to whether or not citizenship is a legal and valid ground for classification has already
been affirmatively decided in this jurisdiction as well as in various courts in the United States. In the case
of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine
Legislature was in issue, because of a condition therein limiting the ownership of vessels engaged in
coastwise trade to corporations formed by citizens of the Philippine Islands or the United States, thus
denying the right to aliens, it was held that the Philippine Legislature did not violate the equal protection
clause of the Philippine Bill of Rights. The legislature in enacting the law had as ultimate purpose the
encouragement of Philippine shipbuilding and the safety for these Islands from foreign interlopers. We
held that this was a valid exercise of the police power, and all presumptions are in favor of its
constitutionality. In substance, we held that the limitation of domestic ownership of vessels engaged in
coastwise trade to citizens of the Philippines does not violate the equal protection of the law and due
process or law clauses of the Philippine Bill of Rights. In rendering said decision we quoted with
approval the concurring opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as
follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example,
acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance,
is distinctly of that character, and forms part of an extensive system, the object of which
is to encourage American shipping, and place them on an equal footing with the shipping
of other nations. Almost every commercial nation reserves to its own subjects a
monopoly of its coasting trade; and a countervailing privilege in favor of American
shipping is contemplated, in the whole legislation of the United States on this subject. It
is not to give the vessel an American character, that the license is granted; that effect
has been correctly attributed to the act of her enrollment. But it is to confer on her
American privileges, as contra distinguished from foreign; and to preserve the
12

Government from fraud by foreigners; in surreptitiously intruding themselves into the
American commercial marine, as well as frauds upon the revenue in the trade coastwise,
that this whole system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a classification
otherwise justified simply because the limitation of the class falls along the lines of
nationality. That would be requiring a higher degree of protection for aliens as a class
than for similar classes than for similar classes of American citizens. Broadly speaking,
the difference in status between citizens and aliens constitutes a basis for reasonable
classification in the exercise of police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers
and peddlers, which provided that no one can obtain a license unless he is, or has declared his
intention, to become a citizen of the United States, was held valid, for the following reason: It may seem
wise to the legislature to limit the business of those who are supposed to have regard for the welfare,
good order and happiness of the community, and the court cannot question this judgment and
conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain
persons, among them aliens, from engaging in the traffic of liquors, was found not to be the result of
race hatred, or in hospitality, or a deliberate purpose to discriminate, but was based on the belief that an
alien cannot be sufficiently acquainted with "our institutions and our life as to enable him to appreciate
the relation of this particular business to our entire social fabric", and was not, therefore, invalid. In Ohio
ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under
consideration an ordinance of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard
rooms) to aliens. It held that plainly irrational discrimination against aliens is prohibited, but it does not
follow that alien race and allegiance may not bear in some instances such a relation to a legitimate
object of legislation as to be made the basis of permitted classification, and that it could not state that the
legislation is clearly wrong; and that latitude must be allowed for the legislative appraisement of local
conditions and for the legislative choice of methods for controlling an apprehended evil. The case of
State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City of
Seattle, 210 P. 30 (Washington, 1922), the business of pawn brooking was considered as having
tendencies injuring public interest, and limiting it to citizens is within the scope of police power. A similar
statute denying aliens the right to engage in auctioneering was also sustained in Wright vs. May, L.R.A.,
1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court
said that aliens are judicially known to have different interests, knowledge, attitude, psychology and
loyalty, hence the prohibitions of issuance of licenses to them for the business of pawnbroker, pool,
billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar vs. Michigan
State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as
barbers was held void, but the reason for the decision was the court's findings that the exercise of the
business by the aliens does not in any way affect the morals, the health, or even the convenience of the
community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947), a California statute
banning the issuance of commercial fishing licenses to person ineligible to citizenship was held void,
because the law conflicts with Federal power over immigration, and because there is no public interest in
the mere claim of ownership of the waters and the fish in them, so there was no adequate justification for
the discrimination. It further added that the law was the outgrowth of antagonism toward the persons of
Japanese ancestry. However, two Justices dissented on the theory that fishing rights have been treated
traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania,
1897), a state law which imposed a tax on every employer of foreign-born unnaturalized male persons
over 21 years of age, was declared void because the court found that there was no reason for the
classification and the tax was an arbitrary deduction from the daily wage of an employee.
d. Authorities contra explained.
13

It is true that some decisions of the Federal court and of the State courts in the United States hold that
the distinction between aliens and citizens is not a valid ground for classification. But in this decision the
laws declared invalid were found to be either arbitrary, unreasonable or capricious, or were the result or
product of racial antagonism and hostility, and there was no question of public interest involved or
pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared
invalid a Philippine law making unlawful the keeping of books of account in any language other than
English, Spanish or any other local dialect, but the main reasons for the decisions are: (1) that if Chinese
were driven out of business there would be no other system of distribution, and (2) that the Chinese
would fall prey to all kinds of fraud, because they would be deprived of their right to be advised of their
business and to direct its conduct. The real reason for the decision, therefore, is the court's belief that no
public benefit would be derived from the operations of the law and on the other hand it would deprive
Chinese of something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220
(1885) an ordinance conferring powers on officials to withhold consent in the operation of laundries both
as to persons and place, was declared invalid, but the court said that the power granted was arbitrary,
that there was no reason for the discrimination which attended the administration and implementation of
the law, and that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165
(Maine, 1900), a law prohibiting aliens to engage as hawkers and peddlers was declared void, because
the discrimination bore no reasonable and just relation to the act in respect to which the classification
was proposed.
The case at bar is radically different, and the facts make them so. As we already have said, aliens do not
naturally possess the sympathetic consideration and regard for the customers with whom they come in
daily contact, nor the patriotic desire to help bolster the nation's economy, except in so far as it
enhances their profit, nor the loyalty and allegiance which the national owes to the land. These
limitations on the qualifications of the aliens have been shown on many occasions and instances,
especially in times of crisis and emergency. We can do no better than borrow the language of Anton vs.
Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the distinction between the
alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into this country are without
the intimate knowledge of our laws, customs, and usages that our own people have. So it
is likewise known that certain classes of aliens are of different psychology from our fellow
countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born,
whose allegiance is first to their own country, and whose ideals of governmental
environment and control have been engendered and formed under entirely different
regimes and political systems, have not the same inspiration for the public weal, nor are
they as well disposed toward the United States, as those who by citizenship, are a part of
the government itself. Further enlargement, is unnecessary. I have said enough so that
obviously it cannot be affirmed with absolute confidence that the Legislature was without
plausible reason for making the classification, and therefore appropriate discriminations
against aliens as it relates to the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive.
We now come to due process as a limitation on the exercise of the police power. It has been stated by
the highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands only that the
law shall not be unreasonable, arbitrary or capricious, and that the means selected shall
have a real and substantial relation to the subject sought to be attained. . . . .
x x x x x x x x x
14

So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may
reasonably be deemed to promote public welfare, and to enforce that policy by legislation
adapted to its purpose. The courts are without authority either to declare such policy, or,
when it is declared by the legislature, to override it. If the laws passed are seen to have a
reasonable relation to a proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied, and judicial determination
to that effect renders a court functus officio. . . . (Nebbia vs. New York, 78 L. ed. 940,
950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in considering the
scope of the police power in a constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to inquire whether the
restriction it imposes on rights secured to individuals by the Bill of Rights are
unreasonable, and not whether it imposes any restrictions on such rights. . . .
x x x x x x x x x
. . . . A statute to be within this power must also be reasonable in its operation upon the
persons whom it affects, must not be for the annoyance of a particular class, and must
not be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the public, it must
appear, first, that the interests of the public generally, as distinguished from those of a
particular class, require such interference; and second, that the means are reasonably
necessary for the accomplishment of the purpose, and not unduly oppressive upon
individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:
In determining whether a given act of the Legislature, passed in the exercise of the police
power to regulate the operation of a business, is or is not constitutional, one of the first
questions to be considered by the court is whether the power as exercised has a
sufficient foundation in reason in connection with the matter involved, or is an arbitrary,
oppressive, and capricious use of that power, without substantial relation to the health,
safety, morals, comfort, and general welfare of the public.
b. Petitioner's argument considered.
Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long
ago recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful and
honest occupation and therefore beyond the power of the legislature to prohibit and penalized. This
arguments overlooks fact and reality and rests on an incorrect assumption and premise, i.e., that in this
country where the occupation is engaged in by petitioner, it has been so engaged by him, by the alien in
an honest creditable and unimpeachable manner, without harm or injury to the citizens and without
ultimate danger to their economic peace, tranquility and welfare. But the Legislature has found, as we
have also found and indicated, that the privilege has been so grossly abused by the alien, thru the
illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control of the
15

occupation and threatens a deadly stranglehold on the nation's economy endangering the national
security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the
facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade
unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and manner
in which the aliens have heretofore engaged therein? As thus correctly stated the answer is clear. The
law in question is deemed absolutely necessary to bring about the desired legislative objective, i.e., to
free national economy from alien control and dominance. It is not necessarily unreasonable because it
affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is
the appropriateness or adequacy under all circumstances of the means adopted to carry out its purpose
into effect (Id.) Judged by this test, disputed legislation, which is not merely reasonable but actually
necessary, must be considered not to have infringed the constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied the bill, which
later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to prevent persons who
are not citizens of the Philippines from having a strangle hold upon our economic life. If
the persons who control this vital artery of our economic life are the ones who owe no
allegiance to this Republic, who have no profound devotion to our free institutions, and
who have no permanent stake in our people's welfare, we are not really the masters of
our destiny. All aspects of our life, even our national security, will be at the mercy of other
people.
In seeking to accomplish the foregoing purpose, we do not propose to deprive persons
who are not citizens of the Philippines of their means of livelihood. While this bill seeks to
take away from the hands of persons who are not citizens of the Philippines a power that
can be wielded to paralyze all aspects of our national life and endanger our national
security it respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic independence is none the
less legitimate. Freedom and liberty are not real and positive if the people are subject to the economic
control and domination of others, especially if not of their own race or country. The removal and
eradication of the shackles of foreign economic control and domination, is one of the noblest motives
that a national legislature may pursue. It is impossible to conceive that legislation that seeks to bring it
about can infringe the constitutional limitation of due process. The attainment of a legitimate aspiration of
a people can never be beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.
The framers of the Constitution could not have intended to impose the constitutional restrictions of due
process on the attainment of such a noble motive as freedom from economic control and domination,
thru the exercise of the police power. The fathers of the Constitution must have given to the legislature
full authority and power to enact legislation that would promote the supreme happiness of the people,
their freedom and liberty. On the precise issue now before us, they expressly made their voice clear;
they adopted a resolution expressing their belief that the legislation in question is within the scope of the
legislative power. Thus they declared the their Resolution:
That it is the sense of the Convention that the public interest requires the nationalization
of retail trade; but it abstain from approving the amendment introduced by the Delegate
for Manila, Mr. Araneta, and others on this matter because it is convinced that the
16

National Assembly is authorized to promulgate a law which limits to Filipino and
American citizens the privilege to engage in the retail trade. (11 Aruego, The Framing of
the Philippine Constitution, quoted on pages 66 and 67 of the Memorandum for the
Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution.
Thus in the preamble, a principle objective is the conservation of the patrimony of the nation and as
corollary the provision limiting to citizens of the Philippines the exploitation, development and utilization
of its natural resources. And in Section 8 of Article XIV, it is provided that "no franchise, certificate, or
any other form of authorization for the operation of the public utility shall be granted except to citizens of
the Philippines." The nationalization of the retail trade is only a continuance of the nationalistic protective
policy laid down as a primary objective of the Constitution. Can it be said that a law imbued with the
same purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid
and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval
of the radical measures is, therefore, fully justified. It would have been recreant to its duties towards the
country and its people would it view the sorry plight of the nationals with the complacency and refuse or
neglect to adopt a remedy commensurate with the demands of public interest and national survival. As
the repository of the sovereign power of legislation, the Legislature was in duty bound to face the
problem and meet, through adequate measures, the danger and threat that alien domination of retail
trade poses to national economy.
d. Provisions of law not unreasonable.
A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those
already engaged in the occupation to continue therein during the rest of their lives; and similar
recognition of the right to continue is accorded associations of aliens. The right or privilege is denied to
those only upon conviction of certain offenses. In the deliberations of the Court on this case, attention
was called to the fact that the privilege should not have been denied to children and heirs of aliens now
engaged in the retail trade. Such provision would defeat the law itself, its aims and purposes. Beside,
the exercise of legislative discretion is not subject to judicial review. It is well settled that the Court will
not inquire into the motives of the Legislature, nor pass upon general matters of legislative judgment.
The Legislature is primarily the judge of the necessity of an enactment or of any of its provisions, and
every presumption is in favor of its validity, and though the Court may hold views inconsistent with the
wisdom of the law, it may not annul the legislation if not palpably in excess of the legislative power.
Furthermore, the test of the validity of a law attacked as a violation of due process, is not its
reasonableness, but its unreasonableness, and we find the provisions are not unreasonable. These
principles also answer various other arguments raised against the law, some of which are: that the law
does not promote general welfare; that thousands of aliens would be thrown out of employment; that
prices will increase because of the elimination of competition; that there is no need for the legislation;
that adequate replacement is problematical; that there may be general breakdown; that there would be
repercussions from foreigners; etc. Many of these arguments are directed against the supposed wisdom
of the law which lies solely within the legislative prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is
misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail
business and prohibit aliens from engaging therein. The constitutional provision which is claimed to be
violated in Section 21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than one subject which shall
be expressed in the title of the bill.
17

What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the
legislators or the public of the nature, scope and consequences of the law or its operation (I Sutherland,
Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the provisions of the
bill fails to show the presence of duplicity. It is true that the term "regulate" does not and may not readily
and at first glance convey the idea of "nationalization" and "prohibition", which terms express the two
main purposes and objectives of the law. But "regulate" is a broader term than either prohibition or
nationalization. Both of these have always been included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may
prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in
page 41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every act of the
Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors,
etc." sufficiently expresses the subject of an act prohibiting the sale of such liquors to
minors and to persons in the habit of getting intoxicated; such matters being properly
included within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308,
quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of restraint
and prohibition of acts usually done in connection with the thing to be regulated. While
word regulate does not ordinarily convey meaning of prohibit, there is no absolute reason
why it should not have such meaning when used in delegating police power in
connection with a thing the best or only efficacious regulation of which involves
suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said that the title
need not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See. 4803,
p. 345.) The above rule was followed the title of the Act in question adopted the more general term
"regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules for the
regulation of the retail trade which may not be included in the terms "nationalization" or "prohibition"; so
were the title changed from "regulate" to "nationalize" or "prohibit", there would have been many
provisions not falling within the scope of the title which would have made the Act invalid. The use of the
term "regulate", therefore, is in accord with the principle governing the drafting of statutes, under which a
simple or general term should be adopted in the title, which would include all other provisions found in
the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to
apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have received the notice, action and study of the legislators or of
the public. In the case at bar it cannot be claimed that the legislators have been appraised of the nature
of the law, especially the nationalization and the prohibition provisions. The legislators took active
interest in the discussion of the law, and a great many of the persons affected by the prohibitions in the
law conducted a campaign against its approval. It cannot be claimed, therefore, that the reasons for
declaring the law invalid ever existed. The objection must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation thereby of the
Charter of the United Nations and of the Declaration of the Human Rights adopted by the United Nations
General Assembly. We find no merit in the Nations Charter imposes no strict or legal obligations
regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951
ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere
recommendation or a common standard of achievement for all peoples and all nations (Id. p. 39.) That
such is the import of the United Nations Charter aid of the Declaration of Human Rights can be inferred
18

the fact that members of the United Nations Organizations, such as Norway and Denmark, prohibit
foreigners from engaging in retail trade, and in most nations of the world laws against foreigners
engaged in domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947
is also claimed to be violated by the law in question. All that the treaty guarantees is equality of
treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But the
nationals of China are not discriminating against because nationals of all other countries, except those of
the United States, who are granted special rights by the Constitution, are all prohibited from engaging in
the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always
subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260),
and the same may never curtail or restrict the scope of the police power of the State (plaston vs.
Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real
actual threat and danger to national economy posed by alien dominance and control of the retail
business and free citizens and country from dominance and control; that the enactment clearly falls
within the scope of the police power of the State, thru which and by which it protects its own personality
and insures its security and future; that the law does not violate the equal protection clause of the
Constitution because sufficient grounds exist for the distinction between alien and citizen in the exercise
of the occupation regulated, nor the due process of law clause, because the law is prospective in
operation and recognizes the privilege of aliens already engaged in the occupation and reasonably
protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear to us to
be plainly evident as a matter of fact it seems not only appropriate but actually necessary and that
in any case such matter falls within the prerogative of the Legislature, with whose power and discretion
the Judicial department of the Government may not interfere; that the provisions of the law are clearly
embraced in the title, and this suffers from no duplicity and has not misled the legislators or the segment
of the population affected; and that it cannot be said to be void for supposed conflict with treaty
obligations because no treaty has actually been entered into on the subject and the police power may
not be curtailed or surrendered by any treaty or any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law could have been made
less harsh in its impact on the aliens. Thus it is stated that the more time should have been given in the
law for the liquidation of existing businesses when the time comes for them to close. Our legal duty,
however, is merely to determine if the law falls within the scope of legislative authority and does not
transcend the limitations of due process and equal protection guaranteed in the Constitution. Remedies
against the harshness of the law should be addressed to the Legislature; they are beyond our power and
jurisdiction.
The petition is hereby denied, with costs against petitioner.
Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ.,
concur.







19















Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-98050 March 17, 1994
PHILIPPINE PHOSPHATE FERTILIZER CORPORATION, petitioner,
vs.
HON. RUBEN D. TORRES, Secretary of Labor and Employment, HON. RODOLFO S. MILADO,
Department of Labor and Employment Mediator-Arbiter for Region VIII, Tacloban, City, and
PHILPHOS MOVEMENT FOR PROGRESS, INC. (PMPI), respondents.
Quiroz, Dumas & Henares Law Offices for petitioner.
Seno, Mendoza & Associates for private respondent Philphos Movement for Progress, Inc.
BELLOSILLO, J .:
PHILIPPINE PHOSPHATE FERTILIZER CORPORATION (PHILPHOS) assails the decision of the
Secretary of Labor of 7 August 1990 affirming the order of the Mediator-Arbiter of 28 March 1990 which
directed the immediate conduct of a certification election among the supervisory, professional or
technical, and confidential employees of petitioner corporation.
On 7 July 1989, Philphos Movement for Progress, Inc. (PMPI for brevity), filed with the Department of
Labor and Employment a petition for certification election among the supervisory employees of
petitioner, alleging that as a supervisory union duly registered with the Department of Labor and
Employment it was seeking to represent the supervisory employees of Philippine Phosphate Fertilizer
Corporation.
The petition for certification election filed by PMPI was not opposed by PHILPHOS. In fact, on 11 August
1989, PHILPHOS submitted a position paper with the Mediator-Arbiter stating that its management
welcomed the creation of a supervisory employees' union provided the necessary requisites of law were
properly observed, but exempting from the union its superintendents who were managerial and not
supervisory employees as they managed a division, subdivision or section, and were vested with powers
or prerogatives to lay down and execute management policies. PHILPHOS also asserted that its
20

professional or technical employees were not within the definition of supervisory employees under the
Labor Code as they were immediately under the direction and supervision of its superintendents and
supervisors. Moreover, the professional and technical employees did not have a staff of workers under
them. Consequently, petitioner prayed for the exclusion of its superintendents and professional/technical
employees from the PMPI supervisory union.
On 13 October 1989, Mediator-Arbiter Rodolfo S. Milado issued an order directing the holding of a
certification election among the supervisory employees of petitioner, excluding therefrom the
superintendents and the professional and technical employees. He also directed the parties to attend the
pre-election conference on 19 April 1990 for the determination of the mechanics of the election process
and the qualifications and eligibility of those allowed to vote.
On 15 November 1989, PMPI filed an amended petition with the Mediator-Arbiter wherein it sought to
represent not only the supervisory employees of petitioner but also its professional/technical and
confidential employees. The amended petition was filed in view of the amendment of the PMPI
Construction which included in its membership the professional/technical and confidential employees.
On 14 December 1989, the parties therein agreed to submit their respective position papers and to
consider the amended petition submitted for decision on the basis thereof and related documents.
On 28 March 1990, Mediator-Arbiter Milado issued an order granting the petition and directing the
holding of a certification election among the "supervisory, professional (engineers, analysts, mechanics,
accountants, nurses, midwives, etc.), technical, and confidential employees"
1
to comprise the proposed
bargaining unit.
On 16 April 1990, PHILPHOS appealed the order of 28 March 1990 to the Secretary of Labor and
Employment who on 7 August 1990 rendered a decision through Undersecretary Bienvenido Laguesma
dismissing the appeal. PHILPHOS moved for reconsideration but the same was denied; hence, the
instant petition alleging grave abuse of discretion on the part of public respondents in rendering the
assailed rulings.
On 8 July 1991, this Court issued a temporary restraining order enjoining respondents from holding the
certification election among petitioner's supervisory, professional/technical, and confidential employees
scheduled on 12 July 1991.
There are two (2) issues raised by petitioner: (1) whether it was denied due process in the proceedings
before respondent Mediator-Arbiter; and, (2) whether its professional/technical and confidential
employees may validly join respondent PMPI union which is composed of supervisors.
PHILPHOS claims that it was denied due process when respondent Mediator-Arbiter granted the
amended petition of respondent PMPI without according PHILPHOS a new opportunity to be heard.
We do not see it the way PHILPHOS does here. The essence of due process is simply an opportunity to
be heard or, as applied to administrative proceedings, an opportunity to explain one's side or an
opportunity to seek a reconsideration of the action or ruling complained of.
2
Where, as in the instant
case, petitioner PHILPHOS agreed to file its position paper with the Mediator-Arbiter and to consider the
case submitted for decision on the basis of the position papers filed by the parties, there was sufficient
compliance with the requirement of due process, as petitioner was afforded reasonable opportunity to
present its side.
3
Moreover, petitioner could have, if it so desired, insisted on a hearing to confront and
examine the witnesses of the other party. But it did
not;
4
instead, it opted to submit its position paper with the Mediator-Arbiter. Besides, petitioner had all
the opportunity to ventilate its arguments in its appeal to the Secretary of Labor.
21

As regards the second issue, we are with petitioner that being a supervisory union, respondent PMPI
cannot represent the professional/technical and confidential employees of petitioner whose positions we
find to be more of the rank and file than supervisory.
With the enactment in March 1989 of R.A. 6715, employees were thereunder reclassified into three (3)
groups, namely: (a) managerial employees, (b) supervisory employees, and (c) rank and file employees.
The category of supervisory employees is once again recognized in the present law.
Article 212, par. (m), of the Labor Code, as amended, provides, that "(s)upervisory employees are those
who, in the interest of the employer, effectively recommend such managerial actions if the exercise of
such authority is not merely routinary or clerical in nature but requires the use of independent judgment."
The definition of managerial employees is limited to those having authority to hire and fire, while those
who only recommend effectively the hiring or firing or transfer of personnel; are considered closer to
rank and file employees. The exclusion therefore of mid-level executives from the category of managers
has brought about a third classification, the supervisory employees. The peculiar role of supervisors is
such that while they are not managers, when they recommend action implementing management policy
or ask for the discipline or dismissal of subordinates, they identify with the interests of the employer and
may act contrary to the interests of the rank and file.
5

In its position paper submitted to the Mediator-Arbiter, petitioner described the positions and functions of
its professional/technical employees, (engineers, analysts, mechanics, accountants, nurses, and
midwives). The guidelines, which were not refuted by respondent PMPI, state:
. . . . Professional and Technical positions are those whose primary duty consists of the
performance of work directly related to management programs; who customarily,
regularly and routinarily exercise judgment in the application of concepts, methods,
systems and procedures in their respective fields of specialization; who regularly and
directly assist a managerial and/or supervisory employee, execute under general
supervision, work along specialized or technical lines requiring special training,
experience or knowledge, or execute under general supervision special assignments and
task . . . . They are immediately under the direction and supervision of supervisors or
superintendents. They have no men under them but are regularly called upon by their
supervisors or superintendents on some technical matters.
6

Moreover, Herculano, A. Duhaylungsod, Personnel Officer of petitioner, attested that there was no
community of interests between the supervisors of petitioner and the professional/technical employees;
that as of 25 July 1990, personnel records showed that there were 125 supervisors and 271
professional/technical employees; that of the 271 professional/technical employees, 150 were directly
under and being supervised by supervisors, while the rest were staff members of superintendents.
7

The certification of Personnel Officer Duhaylungsod that its professional/technical employees occupy
positions that are non-supervisory is evidence that said employees belong to the rank and file.
8
Quite
obviously, these professional/technical employees cannot effectively recommend managerial actions
with the use of independent judgment because they are under the supervision of superintendents and
supervisors. Because it is unrefuted that these professional/technical employees are performing non-
supervisory functions, hence considered admitted, they should be classified, at least for purposes of this
case, as rank and file employees. Consequently, these professional/technical employees cannot be
allowed to join a union composed of supervisors. Conversely, supervisory employees cannot join a labor
organization of employees under their supervision but may validly form a separate organization of their
own.
9
This is provided in Art. 245 of the Labor Code, as amended by R.A. No. 6715, to wit:
. . . Managerial employees are not eligible to join, assist or form any labor organization.
Supervisory employees shall not be eligible for membership in a labor organization of the
rank and file employees but may join, assist or form separate labor organizations of their
own.
22

Respondent PMPI is supposed to be a union of 125 supervisors. If the professional/technical employees
are included as members, and records show that they are 271 in all or much more than the supervisors,
then PMPI will turn out to be a rank and file union with the supervisors as members.
This is precisely the situation which the law prohibits. It would create an obvious conflict of views among
the members, or at least between two (2) groups of members espousing opposing interests. The intent
of the law is to avoid a situation where supervisors would merge with the rank and file, or where the
supervisors' labor organization would represent conflicting interests, especially where, as in the case at
bar, the supervisors will be commingling with those employees whom they directly supervise in their own
bargaining unit. Members of the supervisory union might refuse to carry out disciplinary measures
against their co-member rank and file employees.
10

Supervisors have the right to form their own union or labor organization. What the law prohibits is a
union whose membership comprises of supervisors merging with the rank and file employees because
this is where conflict of interests may arise in the areas of discipline, collective bargaining and strikes.
11

The professional/technical employees of petitioner therefore may join the existing rank and file union, or
form a union separate and distinct from the existing union organized by the rank and file employees of
the same company.
As to the confidential employees of the petitioner, the latter has not shown any proof or compelling
reason to exclude them from joining respondent PMPI and from participating in the certification election,
unless these confidential employees are the same professional/technical employees whom we find to be
occupying rank and file positions.
WHEREFORE, the petition is GRANTED. The decision of respondent Secretary of Labor of 7 August
1990, as well as the order of the respondent Mediator-Arbiter of 28 March 1990, is SET ASIDE. The
professional/technical employees of petitioner Philippine Phosphate Fertilizer Corporation (PHILPHOS)
are declared disqualified from affiliating with respondent Philphos Movement for Progress, Inc. (PMPI).
The Department of Labor is directed to order immediately the conduct of certification election among the
supervisory employees of petitioner, particularly excluding therefrom its professional and technical
employees.
SO ORDERED.
Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.








23









Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL
POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL
INDUSTRY, REGION IV, ILOILO CITY, respondents.
Ramon A. Gonzales for petitioner.
CRUZ, J .:
The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike but
hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the constitutionality
of Executive Order No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the interprovincial movement of
carabaos and the slaughtering of carabaos not complying with the requirements of
Executive Order No. 626 particularly with respect to age;
WHEREAS, it has been observed that despite such orders the violators still manage to
circumvent the prohibition against inter-provincial movement of carabaos by transporting
carabeef instead; and
WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626
and the prohibition against interprovincial movement of carabaos, it is necessary to
strengthen the said Executive Order and provide for the disposition of the carabaos and
carabeef subject of the violation;
24

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue
of the powers vested in me by the Constitution, do hereby promulgate the following:
SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no
carabao regardless of age, sex, physical condition or purpose and no carabeef shall be
transported from one province to another. The carabao or carabeef transported in
violation of this Executive Order as amended shall be subject to confiscation and
forfeiture by the government, to be distributed to charitable institutions and other similar
institutions as the Chairman of the National Meat Inspection Commission may ay see fit,
in the case of carabeef, and to deserving farmers through dispersal as the Director of
Animal Industry may see fit, in the case of carabaos.
SECTION 2. This Executive Order shall take effect immediately.
Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen
hundred and eighty.
(SGD.) FERDINAND E.
MARCOS
President
Republic of the Philippines
The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984,
when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the
above measure. 1 The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a
writ of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of the
case, the court sustained the confiscation of the carabaos and, since they could no longer be produced,
ordered the confiscation of the bond. The court also declined to rule on the constitutionality of the
executive order, as raise by the petitioner, for lack of authority and also for its presumed validity.
2

The petitioner appealed the decision to the Intermediate Appellate Court,*
3
which upheld the trial court,
** and he has now come before us in this petition for review on certiorari.
The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright
confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is that
the penalty is invalid because it is imposed without according the owner a right to be heard before a
competent and impartial court as guaranteed by due process. He complains that the measure should not
have been presumed, and so sustained, as constitutional. There is also a challenge to the improper
exercise of the legislative power by the former President under Amendment No. 6 of the 1973
Constitution.
4

While also involving the same executive order, the case of Pesigan v. Angeles
5
is not applicable here.
The question raised there was the necessity of the previous publication of the measure in the Official
Gazette before it could be considered enforceable. We imposed the requirement then on the basis of
due process of law. In doing so, however, this Court did not, as contended by the Solicitor General,
impliedly affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter.
This Court has declared that while lower courts should observe a becoming modesty in examining
constitutional questions, they are nonetheless not prevented from resolving the same whenever
warranted, subject only to review by the highest tribunal.
6
We have jurisdiction under the Constitution to
"review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may
provide," final judgments and orders of lower courts in, among others, all cases involving the
constitutionality of certain measures.
7
This simply means that the resolution of such cases may be made
in the first instance by these lower courts.
25

And while it is true that laws are presumed to be constitutional, that presumption is not by any means
conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the
need to declare them so, then "will be the time to make the hammer fall, and heavily,"
8
to recall Justice
Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least resistance by
simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe
the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist,
9
and so heal
the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the
task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of
the bench, especially this Court.
The challenged measure is denominated an executive order but it is really presidential decree,
promulgating a new rule instead of merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of his
legislative authority under Amendment No. 6. It was provided thereunder that whenever in his judgment
there existed a grave emergency or a threat or imminence thereof or whenever the legislature failed or
was unable to act adequately on any matter that in his judgment required immediate action, he could, in
order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and
effect of law. As there is no showing of any exigency to justify the exercise of that extraordinary power
then, the petitioner has reason, indeed, to question the validity of the executive order. Nevertheless,
since the determination of the grounds was supposed to have been made by the President "in his
judgment, " a phrase that will lead to protracted discussion not really necessary at this time, we reserve
resolution of this matter until a more appropriate occasion. For the nonce, we confine ourselves to the
more fundamental question of due process.
It is part of the art of constitution-making that the provisions of the charter be cast in precise and
unmistakable language to avoid controversies that might arise on their correct interpretation. That is the
Ideal. In the case of the due process clause, however, this rule was deliberately not followed and the
wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was submitted in
the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the
Committee on the Bill of Rights, who forcefully argued against it. He was sustained by the body. 10
The due process clause was kept intentionally vague so it would remain also conveniently resilient. This
was felt necessary because due process is not, like some provisions of the fundamental law, an "iron
rule" laying down an implacable and immutable command for all seasons and all persons. Flexibility
must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make
it adapt easily to every situation, enlarging or constricting its protection as the changing times and
circumstances may require.
Aware of this, the courts have also hesitated to adopt their own specific description of due process lest
they confine themselves in a legal straitjacket that will deprive them of the elbow room they may need to
vary the meaning of the clause whenever indicated. Instead, they have preferred to leave the import of
the protection open-ended, as it were, to be "gradually ascertained by the process of inclusion and
exclusion in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter of the
U.S. Supreme Court, for example, would go no farther than to define due process and in so doing
sums it all up as nothing more and nothing less than "the embodiment of the sporting Idea of fair
play." 12
When the barons of England extracted from their sovereign liege the reluctant promise that that Crown
would thenceforth not proceed against the life liberty or property of any of its subjects except by the
lawful judgment of his peers or the law of the land, they thereby won for themselves and their progeny
that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King
John made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to
26

all rulers, benevolent or base, that every person, when confronted by the stern visage of the law, is
entitled to have his say in a fair and open hearing of his cause.
The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear "the
other side" before an opinion is formed or a decision is made by those who sit in judgment. Obviously,
one side is only one-half of the question; the other half must also be considered if an impartial verdict is
to be reached based on an informed appreciation of the issues in contention. It is indispensable that the
two sides complement each other, as unto the bow the arrow, in leading to the correct ruling after
examination of the problem not from one or the other perspective only but in its totality. A judgment
based on less that this full appraisal, on the pretext that a hearing is unnecessary or useless, is tainted
with the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of
power.
The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not
be dispensed with because they are intended as a safeguard against official arbitrariness. It is a
gratifying commentary on our judicial system that the jurisprudence of this country is rich with
applications of this guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair
play. We have consistently declared that every person, faced by the awesome power of the State, is
entitled to "the law of the land," which Daniel Webster described almost two hundred years ago in the
famous Dartmouth College Case, 14 as "the law which hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be
secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the
due process clause into a worn and empty catchword.
This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number
of admitted exceptions. The conclusive presumption, for example, bars the admission of contrary
evidence as long as such presumption is based on human experience or there is a rational connection
between the fact proved and the fact ultimately presumed therefrom. 15 There are instances when the
need for expeditions action will justify omission of these requisites, as in the summary abatement of a
nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate
danger it poses to the safety and lives of the people. Pornographic materials, contaminated meat and
narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person
sought for a criminal offense may be cancelled without hearing, to compel his return to the country he
has fled. 16 Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy
houses to protect the public morals. 17 In such instances, previous judicial hearing may be omitted
without violation of due process in view of the nature of the property involved or the urgency of the need
to protect the general welfare from a clear and present danger.
The protection of the general welfare is the particular function of the police power which both restraints
and is restrained by due process. The police power is simply defined as the power inherent in the State
to regulate liberty and property for the promotion of the general welfare. 18 By reason of its function, it
extends to all the great public needs and is described as the most pervasive, the least limitable and the
most demanding of the three inherent powers of the State, far outpacing taxation and eminent domain.
The individual, as a member of society, is hemmed in by the police power, which affects him even before
he is born and follows him still after he is dead from the womb to beyond the tomb in practically
everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome
intrusion. Even so, as long as the activity or the property has some relevance to the public welfare, its
regulation under the police power is not only proper but necessary. And the justification is found in the
venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which
call for the subordination of individual interests to the benefit of the greater number.
It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending
the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except under certain
conditions. The original measure was issued for the reason, as expressed in one of its Whereases, that
"present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the
27

small farmers who rely on them for energy needs." We affirm at the outset the need for such a measure.
In the face of the worsening energy crisis and the increased dependence of our farms on these
traditional beasts of burden, the government would have been remiss, indeed, if it had not taken steps to
protect and preserve them.
A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the
registration, branding and slaughter of large cattle was claimed to be a deprivation of property without
due process of law. The defendant had been convicted thereunder for having slaughtered his own
carabao without the required permit, and he appealed to the Supreme Court. The conviction was
affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of
carabaos, which were then badly needed by farmers. An epidemic had stricken many of these animals
and the reduction of their number had resulted in an acute decline in agricultural output, which in turn
had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent
increase in their price, cattle-rustling had spread alarmingly, necessitating more effective measures for
the registration and branding of these animals. The Court held that the questioned statute was a valid
exercise of the police power and declared in part as follows:
To justify the State in thus interposing its authority in behalf of the public, it must appear,
first, that the interests of the public generally, as distinguished from those of a particular
class, require such interference; and second, that the means are reasonably necessary
for the accomplishment of the purpose, and not unduly oppressive upon individuals. ...
From what has been said, we think it is clear that the enactment of the provisions of the
statute under consideration was required by "the interests of the public generally, as
distinguished from those of a particular class" and that the prohibition of the slaughter of
carabaos for human consumption, so long as these animals are fit for agricultural work or
draft purposes was a "reasonably necessary" limitation on private ownership, to protect
the community from the loss of the services of such animals by their slaughter by
improvident owners, tempted either by greed of momentary gain, or by a desire to enjoy
the luxury of animal food, even when by so doing the productive power of the community
may be measurably and dangerously affected.
In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor
man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of
Executive Order No. 626. The method chosen in the basic measure is also reasonably necessary for the
purpose sought to be achieved and not unduly oppressive upon individuals, again following the above-
cited doctrine. There is no doubt that by banning the slaughter of these animals except where they are at
least seven years old if male and eleven years old if female upon issuance of the necessary permit, the
executive order will be conserving those still fit for farm work or breeding and preventing their
improvident depletion.
But while conceding that the amendatory measure has the same lawful subject as the original executive
order, we cannot say with equal certainty that it complies with the second requirement, viz., that there be
a lawful method. We note that to strengthen the original measure, Executive Order No. 626-A imposes
an absolute ban not on the slaughter of the carabaos but on their movement, providing that "no carabao
regardless of age, sex, physical condition or purpose (sic) and no carabeef shall be transported from
one province to another." The object of the prohibition escapes us. The reasonable connection between
the means employed and the purpose sought to be achieved by the questioned measure is missing
We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their
indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one
province than in another. Obviously, retaining the carabaos in one province will not prevent their
slaughter there, any more than moving them to another province will make it easier to kill them there. As
for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it could be
easily circumvented by simply killing the animal. Perhaps so. However, if the movement of the live
28

animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there is
no reason either to prohibit their transfer as, not to be flippant dead meat.
Even if a reasonable relation between the means and the end were to be assumed, we would still have
to reckon with the sanction that the measure applies for violation of the prohibition. The penalty is
outright confiscation of the carabao or carabeef being transported, to be meted out by the executive
authorities, usually the police only. In the Toribio Case, the statute was sustained because the penalty
prescribed was fine and imprisonment, to be imposed by the court after trial and conviction of the
accused. Under the challenged measure, significantly, no such trial is prescribed, and the property being
transported is immediately impounded by the police and declared, by the measure itself, as forfeited to
the government.
In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were
returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond
of P12,000.00, which was ordered confiscated upon his failure to produce the carabaos when ordered
by the trial court. The executive order defined the prohibition, convicted the petitioner and immediately
imposed punishment, which was carried out forthright. The measure struck at once and pounced upon
the petitioner without giving him a chance to be heard, thus denying him the centuries-old guaranty of
elementary fair play.
It has already been remarked that there are occasions when notice and hearing may be validly
dispensed with notwithstanding the usual requirement for these minimum guarantees of due process. It
is also conceded that summary action may be validly taken in administrative proceedings as procedural
due process is not necessarily judicial only.
20
In the exceptional cases accepted, however. there is a
justification for the omission of the right to a previous hearing, to wit, the immediacy of the problem
sought to be corrected and the urgency of the need to correct it.
In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory
treatment. The properties involved were not even inimical per se as to require their instant destruction.
There certainly was no reason why the offense prohibited by the executive order should not have been
proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under
the Constitution. Considering that, as we held in Pesigan v. Angeles,
21
Executive Order No. 626-A is
penal in nature, the violation thereof should have been pronounced not by the police only but by a court
of justice, which alone would have had the authority to impose the prescribed penalty, and only after trial
and conviction of the accused.
We also mark, on top of all this, the questionable manner of the disposition of the confiscated property
as prescribed in the questioned executive order. It is there authorized that the seized property shall "be
distributed to charitable institutions and other similar institutions as the Chairman of the National Meat
Inspection Commission may see fit, in the case of carabeef, and to deserving farmers through dispersal
as the Director of Animal Industry may see fit, in the case of carabaos." (Emphasis supplied.) The
phrase "may see fit" is an extremely generous and dangerous condition, if condition it is. It is laden with
perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual
standard and the reasonable guidelines, or better still, the limitations that the said officers must observe
when they make their distribution. There is none. Their options are apparently boundless. Who shall be
the fortunate beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers
named can supply the answer, they and they alone may choose the grantee as they see fit, and in their
own exclusive discretion. Definitely, there is here a "roving commission," a wide and sweeping authority
that is not "canalized within banks that keep it from overflowing," in short, a clearly profligate and
therefore invalid delegation of legislative powers.
To sum up then, we find that the challenged measure is an invalid exercise of the police power because
the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law
and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated
is denied the right to be heard in his defense and is immediately condemned and punished. The
29

conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is
a clear encroachment on judicial functions and militates against the doctrine of separation of powers.
There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are
granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we
hereby declare Executive Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station commander who confiscated the
petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its
mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the
police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President, to
declare the executive order unconstitutional and, on his own responsibility alone, refuse to execute it.
Even the trial court, in fact, and the Court of Appeals itself did not feel they had the competence, for all
their superior authority, to question the order we now annul.
The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this
case would never have reached us and the taking of his property under the challenged measure would
have become a fait accompli despite its invalidity. We commend him for his spirit. Without the present
challenge, the matter would have ended in that pump boat in Masbate and another violation of the
Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon
forgotten in the limbo of relinquished rights.
The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke
them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive
tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection.
They become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept
bright and sharp with use by those who are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed
above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the
amount thereof is ordered restored to the petitioner. No costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla Bidin Sarmiento and
Cortes, JJ., concur.
Melencio-Herrera and Feliciano, JJ., are on leave.







30










Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 131652 March 9, 1998
BAYANI M. ALONTE, petitioner,
vs.
HON. MAXIMO A. SAVELLANO JR., NATIONAL BUREAU OF INVESTIGATION and PEOPLE OF
THE PHILIPPINES, respondents.
G.R. No. 131728 March 9, 1998
BUENAVENTURA CONCEPCION, petitioner,
vs.
JUDGE MAXIMO SAVELLANO, JR., THE PEOPLE OF THE PHILIPPINES, and JUVIELYN Y.
PUNONGBAYAN, respondents.
VITUG, J .:
Pending before this Court are two separate petitions, one filed by petitioner Bayani M. Alonte, docketed
G.R. No. 131652, and the other by petitioner Buenaventura Concepcion, docketed G.R. No. 131728,
that assail the decision of respondent Judge Maximo A. Savellano, Jr., of the Regional Trial Court
("RTC"), Branch 53, of Manila finding both petitioners guilty beyond reasonable doubt of the crime of
rape. The two petitions were consolidated.
On 05 December 1996, an information for rape was filed against petitioners Bayani M. Alonte, an
incumbent Mayor of Bian, Laguna, and Buenaventura Concepcion predicated on a complaint filed by
Juvie-lyn Punongbayan. The information contained the following averments; thus:
That on or about September 12, 1996, in Sto. Tomas, Bian, Laguna, and within the jurisdiction
of this Honorable court, the above named accused, who is the incumbent mayor of Bian,
31

Laguna after giving complainant-child drinking water which made her dizzy and weak, did then
and there willfully, unlawfully and feloniously have carnal knowledge with said JUVIELYN
PUNONGBAYAN against her will and consent, to her damage and prejudice.
That accused Buenaventura "Wella" Concepcion without having participated as principal or
accessory assisted in the commission of the offense by bringing said complainant child to the
rest house of accused Bayani "Arthur" Alonte at Sto. Tomas, Bian, Laguna and after receiving
the amount of P1,000.00 left her alone with Bayani Alonte who subsequently raped her.
Contrary to Law.
1

The case was docketed Criminal Case No. 9619-B and assigned by raffle to Branch 25 of the RTC of
Bian, Laguna, presided over by Judge Pablo B. Francisco.
On 13 December 1996, Juvie-lyn Punongbayan, through her counsel Attorney Remedios C. Balbin, and
Assistant Chief State Prosecutor ("ACSP") Leonardo Guiyab, Jr., filed with the Office of the Court
Administrator a Petition for a Change of Venue (docketed Administrative Matter No. 97-1-12-RTC) to
have the case transferred and tried by any of the Regional Trial Courts in Metro Manila.
During the pendency of the petition for change of venue, or on 25 June 1997, Juvie-lyn Punongbayan,
assisted by her parents and counsel, executed an affidavit of desistance, quoted herein in full, as
follows:
AFFIDAVIT OF DESISTANCE
I, JUVIE-LYN YAMBAO PUNONGBAYAN, 17 years of age, a resident of No. 5 Uranus Street,
Congressional Avenue Subdivision, Quezon City, duly assisted by private legal counsel and my
parents, after having duly sworn in accordance with law, depose and say:
1. That I am the Complainant in the rape case filed against Mayor Bayani "Arthur" Alonte of
Bian, Laguna, with the RTC-Branch 25 of Bian, Laguna;
2. That the case has been pending for some time, on preliminary issues, specifically, (a) change
of venue, filed with the Supreme Court; (b) propriety of the appeal to the Court of Appeals, and
after its denial by said court, brought to the Office of the President, on the veracity of the findings
of the Five-Man Investigating Panel of the State Prosecutor's Office, and the Secretary of
Justice, and (c) a hold-departure order filed with the Bian Court.
3. That the legal process moves ever so slowly, and meanwhile, I have already lost two (2)
semesters of my college residence. And when the actual trial is held after all the preliminary
issues are finally resolved, I anticipate a still indefinite suspension of my schooling to attend the
hearings;
4. That during the entire period since I filed the case, my family has lived a most abnormal life:
my father and mother had to give up their jobs; my younger brother, who is in fourth grade, had
to stop his schooling, like myself;
5 That I do not blame anyone for the long, judicial process, I simply wish to stop and live
elsewhere with my family, where we can start life anew, and live normally once again;
6. That I pray that I be allowed to withdraw my complaint for rape and the other charge for child
abuse wherein the Five-Man Investigating Panel of the Office of the State Prosecutor found a
prima facie case although the information has not been filed, and that I will not at any time revive
32

this, and related cases or file new cases, whether, criminal, civil, and/or administrative, here or
anywhere in the Philippines;
7 That I likewise realize that the execution of this Affidavit will put to doubt my credibility as a
witness-complainant;
8. That this is my final decision reached without fear or favor, premised on a corresponding
commitment that there will be no reprisals in whatever form, against members of the police force
or any other official of officer, my relatives and friends who extended assistance to me in
whatever way, in my search for justice.
WHEREOF, I affix my signature this 25 day of June, 1997, in Quezon City.
(Sgd) JUVIE-LYN Y. PUNONGBAYAN
Complainant
Assisted by:
(Sgd) ATTY. REMEDIOS C. BALBIN
Private Prosecutor
In the presence of:
(Sgd) PABLO PUNONGBAYAN
Father
(Sgd) JULIE Y. PUNONGBAYAN
Mother

SUBSCRIBED AND SWORN to before me this 25 day of June, 1997, in Quezon City.
(Sgd) Illegible
Administering Officer
2

On 28 June 1997, Atty. Ramon C. Casino, on behalf of petitioners, moved to have the petition for
change of venue dismissed on the ground that it had become moot in view of complainant's affidavit of
desistance. On 22 August 1997, ACSP Guiyab filed his comment on the motion to dismiss. Guiyab
asserted that he was not aware of the desistance of private complainant and opined that the desistance,
in any case, would not produce any legal effect since it was the public prosecutor who had direction and
control of the prosecution of the criminal action. He prayed for the denial of the motion to dismiss.
On 02 September 1997, this Court issued a Resolution (Administrative Matter No. 97-1-12-RTC),
granting the petition for change of venue. The Court said:
These affidavits give specific names, dates, and methods being used to abort, by coercion or
corruption, the prosecution of Criminal Case No. 9619-B. It is thus incorrect for oppositors Alonte
and Concepcion to contend that the fear of the petitioner, her private counsel and her witnesses
are too generalized if not fabricated. Indeed, the probability that in desisting from pursuing her
complaint for rape, petitioner, a minor, may have succumbed to some illicit influence and undue
pressure. To prevent possible miscarriage of justice is a good excuse to grant the petition to
transfer the venue of Criminal Case No. 9619-B from Bian, Laguna to the City of Manila.
IN VIEW WHEREOF, the Petition for Change of Venue from Bian, Laguna to the City of Manila
is granted. The Executive Judge of RTC Manila is ordered to raffle Crim. Case No. 9619-B to
any of its branches. The judge to whom Crim. Case No. 9619-B shall be raffled shall resolve the
petitioner's Motion to Resume Proceedings filed in Br. XXV of the RTC of Bian, Laguna and
determine the voluntariness and validity of petitioner's desistance in light of the opposition of the
public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab. The branch clerk of court of
Br. XXV of the RTC of Bian, Laguna is ordered to personally deliver to the Executive Judge of
Manila the complete records of Crim. Case No. 9619-B upon receipt of this Resolution.
3

33

On 17 September 1997, the case, now re-docketed Criminal Case No. 97-159955 by the Clerk of Court
of Manila, was assigned by raffle to Branch 53, RTC Manila, with respondent Judge Maximo A.
Savellano, Jr., presiding.
On 07 October 1997, Juvie-lyn Punongbayan, through Attorney Balbin, submitted to the Manila court a
"compliance" where she reiterated "her decision to abide by her Affidavit of Desistance."
In an Order, dated 09 October 1997, Judge Savellano found probable cause for the issuance of warrants
for the arrest of petitioners Alonte and Concepcion "without prejudice to, and independent of, this Court's
separate determination as the trier of facts, of the voluntariness and validity of the [private complainant's]
desistance in the light of the opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo
Guiyab."
On 02 November 1997, Alonte voluntarily surrendered himself to Director Santiago Toledo of the
National Bureau of Investigation ("NBI"), while Concepcion, in his case, posted the recommended bail of
P150,000.00.
On 07 November 1997, petitioners were arraigned and both pleaded "not guilty" to the charge. The
parties manifested that they were waiving pre-trial. The proceedings forthwith went on. Per Judge
Savellano, both parties agreed to proceed with the trial of the case on the merits.
4
According to Alonte,
however, Judge Savellano allowed the prosecution to present evidence relative only to the question of
the voluntariness and validity of the affidavit of desistance.
5

It would appear that immediately following the arraignment, the prosecution presented private
complainant Juvielyn Punongbayan followed by her parents. During this hearing, Punongbayan affirmed
the validity and voluntariness of her affidavit of desistance. She stated that she had no intention of giving
positive testimony in support of the charges against Alonte and had no interest in further prosecuting the
action. Punongbayan confirmed: (i) That she was compelled to desist because of the harassment she
was experiencing from the media, (ii) that no pressures nor influence were exerted upon her to sign the
affidavit of desistance, and (iii) that neither she nor her parents received a single centavo from anybody
to secure the affidavit of desistance.
Assistant State Prosecutor Marilyn Campomanes then presented, in sequence: (i) Punongbayan's
parents, who affirmed their signatures on the affidavit of desistance and their consent to their daughter's
decision to desist from the case, and (ii) Assistant Provincial Prosecutor Alberto Nofuente, who attested
that the affidavit of desistance was signed by Punongbayan and her parents in his presence and that he
was satisfied that the same was executed freely and voluntarily. Finally, Campomanes manifested that
in light of the decision of private complainant and her parents not to pursue the case, the State had no
further evidence against the accused to prove the guilt of the accused. She, then, moved for the
"dismissal of the case" against both Alonte and Concepcion.
Thereupon, respondent judge said that "the case was submitted for decision."
6

On 10 November 1997, petitioner Alonte filed an "Urgent Motion to Admit to Bail." Assistant State
Prosecutor Campomanes, in a Comment filed on the same date, stated that the State interposed "no
objection to the granting of bail and in fact Justice and Equity dictates that it joins the accused in his
prayer for the granting of bail."
Respondent judge did not act on the application for bail.
On 17 November 1997, Alonte filed anew an Urgent Plea to Resolve the Motion for Bail. On even date,
ASP Campomanes filed a Manifestation deeming "it proper and in accord with justice and fair play to join
the aforestated motion."
34

Again, the respondent judge did not act on the urgent motion.
The records would indicate that on the 25th November 1997, 1st December 1997, 8th December 1997
and 10th December 1997, petitioner Alonte filed a Second, Third, Fourth and Fifth Motion for Early
Resolution, respectively, in respect of his application for bail. None of these motions were acted upon by
Judge Savellano.
On 17 December 1997, Attorney Philip Sigfrid A. Fortun, the lead counsel for petitioner Alonte received
a notice from the RTC Manila. Branch 53, notifying him of the schedule of promulgation, on 18
December 1997, of the decision on the case. The counsel for accused Concepcion denied having
received any notice of the scheduled promulgation.
On 18 December 1997, after the case was called, Atty. Sigrid Fortun and Atty. Jose Flaminiano
manifested that Alonte could not attend the promulgation of the decision because he was suffering from
mild hypertension and was confined at the NBI clinic and that, upon the other hand, petitioner
Concepcion and his counsel would appear not to have been notified of the proceedings. The
promulgation, nevertheless, of the decision proceeded in absentia; the reading concluded:
WHEREFORE, judgment is hereby rendered finding the two (2) accused Mayor Bayani Alonte
and Buenaventura "Wella" Concepcion guilty beyond reasonable doubt of the heinous crime of
RAPE, as defined and penalized under Article 335(2) in relation to Article 27 of the Revised
Penal Code, as amended by Republic Act No. 7659, for which each one of the them is hereby
sentenced to suffer the indivisible penalty of RECLUSION PERPETUA or imprisonment for
twenty (20) years and one (1) day to forty (40) years.
In view thereof, the bail bond put up by the accused Buenaventura "Wella'" Concepcion for his
provisional liberty is hereby cancelled and rendered without any further force and effect.
SO ORDERED.
7

On the same day of 18th December 1997, petitioner Alonte filed a motion for reconsideration. Without
waiting for its resolution, Alonte filed the instant "Ex Abundante Ad Cautelam" for "Certiorari, Prohibition,
Habeas Corpus, Bail, Recusation of respondent Judge, and for Disciplinary Action against an RTC
Judge." Petitioner Concepcion later filed his own petition for certiorari and mandamus with the Court.
Alonte submits the following grounds in support of his petition seeking to have the decision nullified and
the case remanded for new trial; thus:
The respondent Judge committed grave abuse of discretion amounting to lack or excess of
jurisdiction when he rendered a Decision in the case a quo (Annex A) without affording the
petitioner his Constitutional right to due process of law (Article III, 1, Constitution).
The respondent Judge committed grave abuse of discretion amounting to lack or excess of
jurisdiction when he rendered a Decision in the case a quo in violation of the mandatory
provisions of the Rules on Criminal Procedure, specifically, in the conduct and order of trial (Rule
119) prior to the promulgation of a judgment (Rule 120; Annex A).
The respondent Judge committed grave abuse of discretion amounting to lack or excess of
jurisdiction when, in total disregard of the Revised Rules on Evidence and existing doctrinal
jurisprudence, he rendered a Decision in the case a quo (Annex A) on the basis of two (2)
affidavits (Punongbayan's and Balbin's) which were neither marked nor offered into evidence by
the prosecution, nor without giving the petitioner an opportunity to cross-examine the affiants
thereof, again in violation of petitioner's right to due process (Article III, 1, Constitution).
35

The respondent Judge committed grave abuse of discretion amounting to lack or excess of
jurisdiction when he rendered a Decision in the case a quo without conducting a trial on the facts
which would establish that complainant was raped by petitioner (Rule 119, Article III, 1,
Constitution), thereby setting a dangerous precedent where heinous offenses can result in
conviction without trial (then with more reason that simpler offenses could end up with the same
result).
8

On the other hand, Concepcion relies on the following grounds in support of his own petition; thus:
1. The decision of the respondent Judge rendered in the course of resolving the prosecution's
motion to dismiss the case is a patent nullity for having been rendered without jurisdiction,
without the benefit of a trial and in total violation of the petitioner's right to due process of law.
2. There had been no valid promulgation of judgment at least as far as petitioner is concerned.
3. The decision had been rendered in gross violation of the right of the accused to a fair trial by
an impartial and neutral judge whose actuations and outlook of the case had been motivated by
a sinister desire to ride on the crest of media hype that surrounded this case and use this case
as a tool for his ambition for promotion to a higher court.
4. The decision is patently contrary to law and the jurisprudence in so far as it convicts the
petitioner as a principal even though he has been charged only as an accomplice in the
information.
9

The petitions deserve some merit; the Court will disregard, in view of the case milieu, the prematurity of
petitioners' invocation, i.e., even before the trial court could resolve Alonte's motion for reconsideration.
The Court must admit that it is puzzled by the somewhat strange way the case has proceeded below.
Per Judge Savellano, after the waiver by the parties of the pre-trial stage, the trial of the case did
proceed on the merits but that
The two (2) accused did not present any countervailing evidence during the trial. They did not
take the witness stand to refute or deny under oath the truth of the contents of the private
complainant's aforementioned affidavit which she expressly affirmed and confirmed in Court, but,
instead, thru their respective lawyers, they rested and submitted the case for decision merely on
the basis of the private complainant's so called "desistance" which, to them, was sufficient
enough for their purposes. They left everything to the so-called "desistance" of the private
complainant.
10

According to petitioners, however, there was no such trial for what was conducted on 07 November
1997, aside from the arraignment of the accused, was merely a proceeding in conformity with the
resolution of this Court in Administrative Case No. 97-1-12-RTC to determine the validity and
voluntariness of the affidavit of desistance executed by Punongbayan.
It does seem to the Court that there has been undue precipitancy in the conduct of the proceedings.
Perhaps the problem could have well been avoided had not the basic procedures been, to the Court's
perception, taken lightly. And in this shortcoming, looking at the records of the case, the trial court
certainly is not alone to blame.
Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides the fundamentals.
(1) No person shall be held to answer for a criminal offense without due process of law.
36

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature
and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet
the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been duly notified and
his failure to appear is unjustifiable.
Jurisprudence
11
acknowledges that due process in criminal proceedings, in particular, require (a) that
the court or tribunal trying the case is properly clothed with judicial power to hear and determine the
matter before it; (b) that jurisdiction is lawfully acquired by it over the person of the accused; (c) that the
accused is given an opportunity to be heard; and (d) that judgment is rendered only upon lawful hearing.

12

The above constitutional and jurisprudential postulates, by now elementary and deeply imbedded in our
own criminal justice system, are mandatory and indispensable. The principles find universal acceptance
and are tersely expressed in the oft-quoted statement that procedural due process cannot possibly be
met without a "law which hears before it condemns, which proceeds upon inquiry and renders judgment
only after trial."
13

The order of trial in criminal cases is clearly spelled out in Section 3, Rule 119, of the Rules of Court; viz:
Sec. 3. Order of trial. The trial shall proceed in the following order:
(a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil
liability.
(b) The accused may present evidence to prove his defense, and damages, if any, arising from
the issuance of any provisional remedy in the case.
(c) The parties may then respectively present rebutting evidence only, unless the court, in
furtherance of justice, permits them to present additional evidence bearing upon the main issue.
(d) Upon admission of the evidence, the case shall be deemed submitted for decision unless the
court directs the parties to argue orally or to submit memoranda.
(e) However, when the accused admits the act or omission charged in the complaint or
information but interposes a lawful defense, the order of trial may be modified accordingly.
In Tabao vs. Espina,
14
the Court has underscored the need to adhere strictly to the above rules. It
reminds that
. . . each step in the trial process serves a specific purpose. In the trial of criminal cases, the
constitutional presumption of innocence in favor of an accused requires that an accused be
given sufficient opportunity to present his defense. So, with the prosecution as to its evidence.
Hence, any deviation from the regular course of trial should always take into consideration the
rights of all the parties to the case, whether in the prosecution or defense. In the exercise of their
discretion, judges are sworn not only to uphold the law but also to do what is fair and just. The
judicial gavel should not be wielded by one who has an unsound and distorted sense of justice
and fairness.
15

While Judge Savellano has claimed in his Comment that
37

Petitioners-accused were each represented during the hearing on 07 November 1997 with their
respective counsel of choice. None of their counsel interposed an intention to cross-examine
rape victim Juvielyn Punongbayan, even after she attested, in answer to respondent judge's
clarificatory questions, the voluntariness and truth of her two affidavits one detailing the rape
and the other detailing the attempts to buy her desistance; the opportunity was missed/not used,
hence waived. The rule of case law is that the right to confront and cross-examine a witness "is a
personal one and may be waived." (emphasis supplied)
it should be pointed out, however, that the existence of the waiver must be positively demonstrated. The
standard of waiver requires that it "not only must be voluntary, but must be knowing, intelligent, and
done with sufficient awareness of the relevant circumstances and likely consequences."
16
Mere silence
of the holder of the right should not be so construed as a waiver of right, and the courts must indulge
every reasonable presumption against waiver.
17
The Solicitor General has aptly discerned a few of the
deviations from what otherwise should have been the regular course of trial: (1) Petitioners have not
been directed to present evidence to prove their defenses nor have dates therefor been scheduled for
the purpose;
18
(2) the parties have not been given the opportunity to present rebutting evidence nor
have dates been set by respondent Judge for the purpose;
19
and (3) petitioners have not admitted the
act charged in the Information so as to justify any modification in the order of trial.
20
There can be no
short-cut to the legal process, and there can be no excuse for not affording an accused his full day in
court. Due process, rightly occupying the first and foremost place of honor in our Bill of Rights, is an
enshrined and invaluable right that cannot be denied even to the most undeserving.
This case, in fine, must be remanded for further proceedings. And, since the case would have to be sent
back to the court a quo, this ponencia has carefully avoided making any statement or reference that
might be misconstrued as prejudgment or as pre-empting the trial court in the proper disposition of the
case. The Court likewise deems it appropriate that all related proceedings therein, including the petition
for bail, should be subject to the proper disposition of the trial court.
Nevertheless, it is needful to stress a few observations on the affidavit of desistance executed by the
complainant.
Firstly, the affidavit of desistance of Juvie-Lyn Punongbayan, hereinbefore quoted, does not contain any
statement that disavows the veracity of her complaint against petitioners but merely seeks to "be allowed
to withdraw" her complaint and to discontinue with the case for varied other reasons. On this subject, the
case of People vs. Junio,
21
should be instructive. The Court has there explained:
The appellant's submission that the execution of an Affidavit of Desistance by complainant who
was assisted by her mother supported the "inherent incredibility of prosecution's evidence" is
specious. We have said in so many cases that retractions are generally unreliable and are
looked upon with considerable disfavor by the courts. The unreliable character of this document
is shown by the fact that it is quite incredible that after going through the process of having
accused-appellant arrested by the police, positively identifying him as the person who raped her,
enduring the humiliation of a physical examination of her private parts, and then repeating her
accusations in open court by recounting her anguish, Maryjane would suddenly turn around and
declare that "[a]fter a careful deliberation over the case, (she) find(s) that the same does not
merit or warrant criminal prosecution.
Thus, we have declared that at most the retraction is an afterthought which should not be given
probative value. It would be a dangerous rule to reject the testimony taken before the court of
justice simply because the witness who has given it later on changed his mind for one reason or
another. Such a rule will make a solemn trial a mockery and place the investigation at the mercy
of unscrupulous witnesses. Because affidavits of retraction can easily be secured from poor and
ignorant witnesses, usually for monetary consideration, the Court has invariably regarded such
affidavits as exceedingly unreliable [Flores vs. People, 211 SCRA 622, citing De Guzman vs.
Intermediate Appellate Court, 184 SCRA 128; People vs. Galicia, 123 SCRA 550.]
22

38

The Junio rule is no different from ordinary criminal cases. For instance, in People vs. Ballabare,
23
a
murder case, the Court has ruled:
The contention has no merit. To begin with, the Affidavit executed by eyewitness Tessie Asenita
is not a recantation. To recant a prior statement is to renounce and withdraw it formally and
publicly. [36 WORDS AND PHRASES 683, citing Pradlik vs. State, 41-A 2nd, 906, 907.] In her
affidavit, Tessie Asenita did not really recant what she had said during the trial. She only said
she wanted to withdraw her testimony because her father, Leonardo Tacadao, Sr., was no
longer interested in prosecuting the case against accused-appellant. Thus, her affidavit stated:
3. That inasmuch as my father, Leonardo Tacadao, Sr., the complainant therein, was no longer
interested to prosecute the case as manifested in the Sworn Affidavit of Desistance before the
Provincial Prosecutor, I do hereby WITHDRAW and/or REVOKE my testimony of record to
confirm (sic) with my father's desire;
It is absurd to disregard a testimony that has undergone trial and scrutiny by the court and the
parties simply because an affidavit withdrawing the testimony is subsequently presented by the
defense. In the first place, any recantation must be tested in a public trial with sufficient
opportunity given to the party adversely affected by it to cross-examine the recanting witness. In
this case, Tessie Asenita was not recalled to the witness stand to testify on her affidavit. Her
affidavit is thus hearsay. It was her husband, Roque Asenita, who was presented and the
matters he testified to did not even bear on the substance of Tessie's affidavit. He testified that
accused-appellant was not involved in the perpetration of the crime.
In the second place, to accept the new evidence uncritically would be to make a solemn trial a
mockery and place the investigation at the mercy of unscrupulous witnesses. [De Guzman vs.
Intermediate Appellate Court, 184 SCRA 128, 134, citing People vs. Morales, 113 SCRA 683.]
For even assuming that Tessie Asenita had made a retraction, this circumstance alone does not
require the court to disregard her original testimony. A retraction does not necessarily negate an
earlier declaration. [People vs. Davatos, 229 SCRA 647.] For this reason, courts look with
disfavor upon retractions because they can easily be obtained from witnesses usually through
intimidation or for monetary considerations. [People vs. Clamor, 198 SCRA 642.] Hence, when
confronted with a situation where a witness recants his testimony, courts must not automatically
exclude the original testimony solely on the basis of the recantation. They should determine
which testimony should be given credence through a comparison of the original testimony and
the new testimony, applying the general rules of evidence. [Reano vs. Court of Appeals, 165
SCRA 525.] In this case we think the trial court correctly ruled.
24

It may not be amiss to state that courts have the inherent power to compel the attendance of any person
to testify in a case pending before it, and a party is not precluded from invoking that authority.
25

Secondly, an affidavit of desistance by itself, even when construed as a pardon in the so-called "private
crimes," is not a ground for the dismissal of the criminal case once the action has been instituted. The
affidavit, nevertheless, may, as so earlier intimated, possibly constitute evidence whose weight or
probative value, like any other piece of evidence, would be up to the court for proper evaluation. The
decision in Junio went on to hold
While "[t]he offenses of seduction, abduction, rape or acts of lasciviousness, shall not be
prosecuted except upon a complaint flied by the offended party or her parents, grandparents, or
guardian, nor in any case, if the offender has been expressly pardoned by the above named
persons, as the case may be," [Third par. of Art. 344, The Revised Penal Code.] the pardon to
justify the dismissal of the complaint should have been made prior to the institution of the
criminal action. [People vs. Entes, 103 SCRA 162, cited by People vs. Soliao, 194 SCRA 250,
which in turn is cited in People vs. Villorente, 210 SCRA 647.] Here, the motion to dismiss to
which the affidavit of desistance is attached was filed after the institution of the criminal case.
39

And, affiant did not appear to be serious in "signifying (her) intention to refrain from testifying"
since she still completed her testimony notwithstanding her earlier affidavit of desistance. More,
the affidavit is suspect considering that while it was dated "April 1992," it was only submitted
sometime in August 1992, four (4) months after the Information was filed before the court a quo
on 6 April 1992, perhaps dated as such to coincide with the actual filing of the case.
26

In People vs. Miranda,
27
applying the pertinent provisions of Article 344 of the Revised Penal Code
which, in full, states
Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape, and
acts of lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except
upon a complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both the guilty parties,
if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.
The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted
except upon a complaint filed by the offended party or her parents, grandparents, or guardian,
nor, in any case, if the offender has been expressly pardoned by the above named persons, as
the case may be.
In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender
with the offended party shall extinguish the criminal action or remit the penalty already imposed
upon him. The provisions of this paragraph shall also be applicable to the coprincipals,
accomplices and accessories after the fact of the above-mentioned crimes.
the Court said:
Paragraph 3 of the legal provision above quoted prohibits a prosecution for seduction, abduction,
rape, or acts of lasciviousness, except upon a complaint made by the offended party or her
parents, grandparents, or guardian, nor, in any case, if the offender has been expressly
pardoned by the above-named persons, as the case may be. It does not prohibit the continuance
of a prosecution if the offended party pardons the offender after the cause has been instituted,
nor does it order the dismissal of said cause. The only act that according to article 344
extinguishes the penal action and the penalty that may have been imposed is the marriage
between the offended and the offended party.
28

In People vs. Infante,
29
decided just a little over a month before Miranda, the Court similarly held:
In this court, after the case had been submitted, a motion to dismiss was filed on behalf of the
appellant predicated on an affidavit executed by Manuel Artigas, Jr., in which he pardoned his
guilty spouse for her infidelity. But this attempted pardon cannot prosper for two reasons. The
second paragraph of article 344 of the Revised Penal Code which is in question reads: "The
offended party cannot institute criminal prosecution without including both the guilty parties, if
they are both alive, nor, in any case, if he shall have consented or pardoned the offenders." This
provision means that the pardon afforded the offenders must come before the institution of the
criminal prosecution, and means, further, that both the offenders must be pardoned by the
offended party. To elucidate further, article 435 of the old Penal Code provided: "The husband
may at any time remit the penalty imposed upon his wife. In such case the penalty imposed upon
the wife's paramour shall also be deemed to be remitted." These provisions of the old Penal
Code became inoperative after the passage of Act No. 1773, section 2, which had the effect of
repealing the same. The Revised Penal Code thereafter expressly repealed the old Penal Code,
and in so doing did not have the effect of reviving any of its provisions which were not in force.
But with the incorporation of the second paragraph of article 344, the pardon given by the
40

offended party again constitutes a bar to the prosecution for adultery. Once more, however, it
must be emphasized that this pardon must come before the institution of the criminal prosecution
and must be for both offenders to be effective circumstances which do not concur in this case.

30

The decisions speak well for themselves, and the Court need not say more than what it has heretofore
already held.
Relative to the prayer for the disqualification of Judge Savellano from further hearing the case, the Court
is convinced that Judge Savellano should, given the circumstances, the best excused from the case.
Possible animosity between the personalities here involved may not all be that unlikely. The
pronouncement of this Court in the old case of Luque vs. Kayanan
31
could again be said: All suitors are
entitled to nothing short of the cold neutrality of an independent, wholly-free, disinterested and unbiased
tribunal. Second only to the duty of rendering a just decision is the duty of doing it in a manner that will
not arouse any suspicion as to the fairness and integrity of the Judge.
32
It is not enough that a court is
impartial, it must also be perceived as impartial.
The Court cannot end this ponencia without a simple reminder on the use of proper language before the
courts. While the lawyer in promoting the cause of his client or defending his rights might do so with
fervor, simple courtesy demands that it be done within the bounds of propriety and decency. The use of
intemperate language and unkind ascriptions hardly can be justified nor can have a place in the dignity
of judicial forum. Civility among members of the legal profession is a treasured tradition that must at no
time be lost to it.
Finally, it may be opportune to say, once again, that prosecutors are expected not merely to discharge
their duties with the highest degree or excellence, professionalism and skill but also to act each time with
utmost devotion and dedication to duty.
33
The Court is hopeful that the zeal which has been exhibited
many times in the past, although regrettably a disappointment on few occasions, will not be wanting in
the proceedings yet to follow.
WHEREFORE, conformably with all the foregoing, the Court hereby RULES that
(a) The submission of the "Affidavit of Desistance," executed by Juvie-Lyn Y. Punongbayan on
25 June 1997, having been filed AFTER the institution of Criminal Case No. 97-159935, DOES
NOT WARRANT THE DISMISSAL of said criminal case;
(b) For FAILURE OF DUE PROCESS, the assailed judgment, dated 12 December 1997,
convicting petitioners is declared NULL AND VOID and thereby SET ASIDE; accordingly, the
case is REMANDED to the trial court for further proceedings; and
(c) Judge Maximo A. Savellano, Jr., presiding Judge of Branch 53 of the Regional Trial Court of
Manila, is ENJOINED from further hearing Criminal Case No. 97-159935; instead, the case shall
immediately be scheduled for raffle among the other branches of that court for proper
disposition.
No special pronouncement on costs.
SO ORDERED.
Melo, Kapunan, Martinez, Quisumbing and Purisima, JJ., concur.
Narvasa, C.J., took no part.

41

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 104961 October 7, 1994
CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK FORCE,
respondents.
Ronolfo S. Pasamba for petitioner.
BELLOSILLO, JR., J .:
PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition) the following
resolutions of the Commission on Elections: Resolution No. 2327 dated 26 December 1991 for being
unconstitutional, and Resolution No. 92-0829 dated 6 April 1992 and Resolution No. 92-0999 dated 23
April 1992, for want of legal and factual bases.
The factual backdrop: In preparation for the synchronized national and local elections scheduled on 11
May 1992, the Commission on Elections (COMELEC) issued on 11 December 1991 Resolution No.
2323 otherwise referred to as the "Gun Ban," promulgating rules and regulations on bearing, carrying
and transporting of firearms or other deadly weapons, on security personnel or bodyguards, on bearing
arms by members of security agencies or police organizations, and organization or maintenance of
reaction forces during the election period.
1
Subsequently, on 26 December 1991 COMELEC issued
Resolution No. 2327 providing for the summary disqualification of candidates engaged in gunrunning,
using and transporting of firearms, organizing special strike forces, and establishing spot checkpoints.
2

On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms, House of
Representatives, wrote petitioner who was then Congressman of the 1st District of Bulacan requesting
the return of the two (2) firearms
3
issued to him by the House of Representatives. Upon being advised of
the request on 13 January 1992 by his staff, petitioner immediately instructed his driver, Ernesto
Arellano, to pick up the firearms from petitioner's house at Valle Verde and return them to Congress.
Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine National Police (PNP)
headed by Senior Superintendent Danilo Cordero set up a checkpoint outside the Batasan Complex
some twenty (20) meters away from its entrance. About thirty minutes later, the policemen manning the
outpost flagged down the car driven by Arellano as it approached the checkpoint. They searched the car
and found the firearms neatly packed in their gun cases and placed in a bag in the trunk of the car.
Arellano was then apprehended and detained. He explained that he was ordered by petitioner to get the
firearms from the house and return them to Sergeant-at-Arms Taccad of the House of Representatives.
Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for inquest. The
referral did not include petitioner as among those charged with an election offense. On 15 January 1992,
the City Prosecutor ordered the release of Arellano after finding the latter's sworn explanation
meritorious.
4

On 28 January 1992, the City Prosecutor invited petitioner to shed light on the circumstances mentioned
in Arellano's sworn explanation. Petitioner not only appeared at the preliminary investigation to confirm
Arellano's statement but also wrote the City Prosecutor urging him to exonerate Arellano. He explained
that Arellano did not violate the firearms ban as he in fact was complying with it when apprehended by
42

returning the firearms to Congress; and, that he was petitioner's driver, not a security officer nor a
bodyguard.
5

On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other matters,
recommended that the case against Arellano be dismissed and that the "unofficial" charge against
petitioner be also dismissed.
6

Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC issued
Resolution No. 92-0829 directing the filing of information against petitioner and Arellano for violation of
Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as the Omnibus Election Code, in relation to Sec.
32 of R.A. No. 7166;
7
and petitioner to show cause why he should not be disqualified from running for an
elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sec. 32, 33 and 35 of R.A.
7166, and
Sec. 52, par. (c), of B.P. Blg. 881.
8

On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the administrative
proceedings as well as the filing of the information in court.
9
On 23 April 1992, the COMELEC denied
petitioner's motion for reconsideration.
10
Hence, this recourse.
Petitioner questions the constitutionality of Resolution No. 2327. He argues that the rules and
regulations of an administrative body must respect the limits defined by law; that the Omnibus Election
Code provides for the disqualification of any person/candidate from running for or holding a public office,
i.e., any person who has either been declared by competent authority as insane or incompetent or has
been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he
has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude;
that gunrunning, using or transporting firearms or similar weapons and other acts mentioned in the
resolution are not within the letter or spirit of the provisions of the Code; that the resolution did away with
the requirement of final conviction before the commission of certain offenses; that instead, it created a
presumption of guilt as a candidate may be disqualified from office in situations (a) where the criminal
charge is still pending, (b) where there is no pending criminal case, and (c) where the accused has
already been acquitted, all contrary to the requisite quantum of proof for one to be disqualified from
running or holding public office under the Omnibus Election Code, i.e., proof beyond reasonable doubt.
As a result, petitioner concludes, Resolution No. 2327 violates the fundamental law thus rendering it
fatally defective.
But, the issue on the disqualification of petitioner from running in the
11 May 1992 synchronized elections was rendered moot when he lost his bid for a seat in Congress in
the elections that ensued. Consequently, it is now futile to discuss the implications of the charge against
him on his qualification to run for public office.
However, there still remains an important question to be resolved, i.e., whether he can be validly
prosecuted for instructing his driver to return to the Sergeant-at-Arms of the House of Representatives
the two firearms issued to him on the basis of the evidence gathered from the warrantless search of his
car.
Petitioner strongly protests against the manner by which the PNP conducted the search. According to
him, without a warrant and without informing the driver of his fundamental rights the policemen searched
his car. The firearms were not tucked in the waist nor within the immediate reach of Arellano but were
neatly packed in their gun cases and wrapped in a bag kept in the trunk of the car. Thus, the search of
his car that yielded the evidence for the prosecution was clearly violative of Secs. 2 and 3, par. (2), Art.
III, of the Constitution.
11

43

Petitioner further maintains that he was neither impleaded as party respondent in the preliminary
investigation before the Office of the City Prosecutor nor included in the charge sheet. Consequently,
making him a respondent in the criminal information would violate his constitutional right to due process.
Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits any candidate for
public office during the election period from employing or availing himself or engaging the services of
security personnel or bodyguards since, admittedly, Arellano was not a security officer or bodyguard but
a civilian employee assigned to him as driver by the House of Representatives. Specifically, petitioner
further argues, Arellano was instructed to return to Congress, as he did, the firearms in compliance with
the directive of its Sergeant-at-Arms pursuant to the "Gun Ban," thus, no law was in fact violated.
12

On 25 June 1992, we required COMELEC to file its own comment on the
petition
13
upon manifestation of the Solicitor General that it could not take the position of COMELEC and
prayed instead to be excused from filing the required comment.
14

COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q), in relation to Sec. 263, of
B.P. Blg. 881 which provides that "the principals, accomplices and accessories, as defined in the
Revised Penal Code, shall be criminally liable for election offenses." It points out that it was upon
petitioner's instruction that Arellano brought the firearms in question outside petitioner's residence,
submitting that his right to be heard was not violated as he was invited by the City Prosecutor to explain
the circumstances regarding Arellano's possession of the firearms. Petitioner also filed a sworn written
explanation about the incident. Finally, COMELEC claims that violation of
the "Gun Ban" is mala prohibita, hence, the intention of the offender is immaterial.
15

Be that as it may, we find no need to delve into the alleged constitutional infirmity of Resolution No. 2327
since this petition may be resolved without passing upon this particular issue.
16

As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate authority.
However, this is not absolute. Aside from a search incident to a lawful arrest, a warrantless search had
been upheld in cases of moving vehicles and the seizure of evidence in plain view,
17
as well as the
search conducted at police or military checkpoints which we declared are not illegal per se, and stressed
that the warrantless search is not violative of the Constitution for as long as the vehicle is neither
searched nor its occupants subjected to a body search, and the inspection of the vehicle is merely
limited to a visual search.
18

Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and
that they were neatly packed in gun cases and placed inside a bag at the back of the car. Significantly,
COMELEC did not rebut this claim. The records do not show that the manner by which the package was
bundled led the PNP to suspect that it contained firearms. There was no mention either of any report
regarding any nervous, suspicious or unnatural reaction from Arellano when the car was stopped and
searched. Given these circumstances and relying on its visual observation, the PNP could not
thoroughly search the car lawfully as well as the package without violating the constitutional injunction.
An extensive search without warrant could only be resorted to if the officers conducting the search had
reasonable or probable cause to believe before the search that either the motorist was a law offender or
that they would find the instrumentality or evidence pertaining to the commission of a crime in the vehicle
to be searched.
19
The existence of probable cause justifying the warrantless search is determined by the
facts of each case.
20
Thus, we upheld the validity of the warrantless search in situations where the smell
of marijuana emanated from a plastic bag owned by the accused, or where the accused was acting
suspiciously, and attempted to flee.
21

We also recognize the stop-and-search without warrant conducted by police officers on the basis of prior
confidential information which were reasonably corroborated by other attendant matters, e.g., where a
confidential report that a sizeable volume of marijuana would be transported along the route where the
44

search was conducted and appellants were caught in flagrante delicto transporting drugs at the time of
their arrest;
22
where apart from the intelligence information, there were reports by an undercover "deep
penetration" agent that appellants were bringing prohibited drugs into the country;
23
where the
information that a Caucasian coming from Sagada bringing prohibited drugs was strengthened by the
conspicuous bulge in accused's waistline, and his suspicious failure to produce his passport and other
identification papers;
24
where the physical appearance of the accused fitted the description given in the
confidential information about a woman transporting marijuana;
25
where the accused carrying a bulging
black leather bag were suspiciously quiet and nervous when queried about its contents;
26
or where the
identity of the drug courier was already established by police authorities who received confidential
information about the probable arrival of accused on board one of the vessels arriving in Dumaguete
City.
27

In the case at bench, we find that the checkpoint was set up twenty (20) meters from the entrance to the
Batasan Complex to enforce Resolution
No. 2327. There was no evidence to show that the policemen were impelled to do so because of a
confidential report leading them to reasonably believe that certain motorists matching the description
furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special
strike forces. Nor, as adverted to earlier, was there any indication from the package or behavior of
Arellano that could have triggered the suspicion of the policemen. Absent such justifying circumstances
specifically pointing to the culpability of petitioner and Arellano, the search could not be valid. The action
then of the policemen unreasonably intruded into petitioner's privacy and the security of his property, in
violation of Sec. 2, Art. III, of the Constitution. Consequently, the firearms obtained in violation of
petitioner's right against warrantless search cannot be admitted for any purpose in any proceeding.
It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver
of petitioner's right to question the reasonableness of the search of the vehicle and the seizure of the
firearms.
While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines
shall be made to ensure that no infringement of civil and political rights results from the implementation
of this authority," and that "the places and manner of setting up of checkpoints shall be determined in
consultation with the Committee on Firearms Ban and Security Personnel created under Sec. 5,
Resolution No. 2323."
28
The facts show that PNP installed the checkpoint at about five o'clock in the
afternoon of 13 January 1992. The search was made soon thereafter, or thirty minutes later. It was not
shown that news of impending checkpoints without necessarily giving their locations, and the reason for
the same have been announced in the media to forewarn the citizens. Nor did the informal checkpoint
that afternoon carry signs informing the public of the purpose of its operation. As a result, motorists
passing that place did not have any inkling whatsoever about the reason behind the instant exercise.
With the authorities in control to stop and search passing vehicles, the motorists did not have any choice
but to submit to the PNP's scrutiny. Otherwise, any attempt to turnabout albeit innocent would raise
suspicion and provide probable cause for the police to arrest the motorist and to conduct an extensive
search of his vehicle.
In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As
conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of
fourteen (14) armed policemen conducting the operation,
29
driver Arellano being alone and a mere
employee of petitioner could not have marshalled the strength and the courage to protest against the
extensive search conducted in the vehicle. In such scenario, the "implied acquiescence," if there was
any, could not be more than a mere passive conformity on Arellano's part to the search, and "consent"
given under intimidating or coercive circumstances is no consent within the purview of the constitutional
guaranty.
Moreover, the manner by which COMELEC proceeded against petitioner runs counter to the due
process clause of the Constitution. The facts show that petitioner was not among those charged by the
PNP with violation of the Omnibus Election Code. Nor was he subjected by the City Prosecutor to a
45

preliminary investigation for such offense. The non-disclosure by the City Prosecutor to the petitioner
that he was a respondent in the preliminary investigation is violative of due process which requires that
the procedure established by law should be obeyed.
30

COMELEC argues that petitioner was given the change to be heard because he was invited to enlighten
the City Prosecutor regarding the circumstances leading to the arrest of his driver, and that petitioner in
fact submitted a sworn letter of explanation regarding the incident. This does not satisfy the requirement
of due process the essence of which is the reasonable opportunity to be heard and to submit any
evidence one may have in support of his defense.
31
Due process guarantees the observance of both
substantive and procedural rights, whatever the source of such rights, be it the Constitution itself or only
a statute or a rule of court.
32
In Go v. Court of Appeals,
33
we held
that
While the right to preliminary investigation is statutory rather than constitutional in its
fundament, since it has in fact been established by statute, it is a component part of due
process in criminal justice. The right to have a preliminary investigation conducted before
being bound over to trial for a criminal offense and hence formally at risk of incarceration
or some other penalty is not a mere formal or technical right; it is a substantive right . . . .
[T]he right to an opportunity to avoid a process painful to anyone save, perhaps, to
hardened criminals is a valuable right. To deny petitioner's claim to a preliminary
investigation would be to deprive him of the full measure of his right to due process.
Apparently, petitioner was merely invited during the preliminary investigation of Arellano to corroborate
the latter's explanation. Petitioner then was made to believe that he was not a party respondent in the
case, so that his written explanation on the incident was only intended to exculpate Arellano, not
petitioner himself. Hence, it cannot be seriously contended that petitioner was fully given the opportunity
to meet the accusation against him as he was not apprised that he was himself a respondent when he
appeared before the City Prosecutor.
Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration with COMELEC
cannot be considered as a waiver of his claim to a separate preliminary investigation for himself. The
motion itself expresses petitioner's vigorous insistence on his right. Petitioner's protestation started as
soon as he learned of his inclusion in the charge, and did not ease up even after COMELEC's denial of
his motion for reconsideration. This is understandably so since the prohibition against carrying firearms
bears the penalty of imprisonment of not less than one (1) year nor more than six (6) years without
probation and with disqualification from holding public office, and deprivation of the right to suffrage.
Against such strong stance, petitioner clearly did not waive his right to a preliminary investigation.
WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the Philippine
National Police on 13 January 1992 is declared illegal and the firearms seized during the warrantless
search cannot be used as evidence in any proceeding against petitioner. Consequently, COMELEC
Resolution No. 92-0829 dated 6 April 1992 being violative of the Constitution is SET ASIDE.
The temporary restraining order we issued on 5 May 1992 is made permanent.
SO ORDERED.
Narvasa, C.J., Romero, Quiason, Puno, Kapunan and Mendoza, JJ., concur.
Feliciano, Padilla and Bidin, JJ., are on leave.


46




Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 84818 December 18, 1989
PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION, petitioner,
vs.
JOSE LUIS A. ALCUAZ, as NTC Commissioner, and NATIONAL TELECOMMUNICATIONS
COMMISSION, respondents.
Rilloraza, Africa, De Ocampo & Africa for petitioner.
Victor de la Serna for respondent Alcuaz.
REGALADO, J .:
This case is posed as one of first impression in the sense that it involves the public utility services of the
petitioner Philippine Communications Satellite Corporation (PHILCOMSAT, for short) which is the only
one rendering such services in the Philippines.
The petition before us seeks to annul and set aside an Order
1
issued by respondent Commissioner
Jose Luis Alcuaz of the National Telecommunications Commission (hereafter, NTC), dated September
2, 1988, which directs the provisional reduction of the rates which may be charged by petitioner for
certain specified lines of its services by fifteen percent (15%) with the reservation to make further
reductions later, for being violative of the constitutional prohibition against undue delegation of legislative
power and a denial of procedural, as well as substantive, due process of law.
The antecedental facts as summarized by petitioner
2
are not in dispute. By virtue of Republic Act No.
5514, PHILCOMSAT was granted "a franchise to establish, construct, maintain and operate in the
Philippines, at such places as the grantee may select, station or stations and associated equipment and
facilities for international satellite communications." Under this franchise, it was likewise granted the
authority to "construct and operate such ground facilities as needed to deliver telecommunications
services from the communications satellite system and ground terminal or terminals."
Pursuant to said franchise, petitioner puts on record that it undertook the following activities and
established the following installations:
1. In 1967, PHILCOMSAT established its provisional earth station in Pinugay, Rizal.
2. In 1968, earth station standard "A" antenna (Pinugay I) was established. Pinugay I
provided direct satellite communication links with the Pacific Ocean Region (the United
States, Australia, Canada, Hawaii, Guam, Korea, Thailand, China [PROC], New Zealand
and Brunei) thru the Pacific Ocean INTELSAT satellite.
47

3. In 1971, a second earth station standard "A" antenna(Pinugay III) was established.
Pinugay II provided links with the Indian Ocean Region (major cities in Europe, Middle
East, Africa, and other Asia Pacific countries operating within the region) thru the Indian
Ocean INTELSAT satellite.
4. In 1983, a third earth station standard "B" antenna (Pinugay III) was established to
temporarily assume the functions of Pinugay I and then Pinugay II while they were being
refurbished. Pinugay III now serves as spare or reserved antenna for possible
contingencies.
5. In 1983, PHILCOMSAT constructed and installed a standard "B" antenna at Clark Air
Field, Pampanga as a television receive-only earth station which provides the U.S.
Military bases with a 24-hour television service.
6. In 1989, petitioner completed the installation of a third standard "A" earth station
(Pinugay IV) to take over the links in Pinugay I due to obsolescence.
3

By designation of the Republic of the Philippines, the petitioner is also the sole signatory for the
Philippines in the Agreement and the Operating Agreement relating to the International
Telecommunications Satellite Organization (INTELSAT) of 115 member nations, as well as in the
Convention and the Operating Agreement of the International Maritime Satellite Organization
(INMARSAT) of 53 member nations, which two global commercial telecommunications satellite
corporations were collectively established by various states in line with the principles set forth in
Resolution 1721 (XVI) of the General Assembly of the United Nations.
Since 1968, the petitioner has been leasing its satellite circuits to:
1. Philippine Long Distance Telephone Company;
2. Philippine Global Communications, Inc.;
3. Eastern Telecommunications Phils., Inc.;
4. Globe Mackay Cable and Radio Corp. ITT; and
5. Capitol Wireless, Inc.
or their predecessors-in-interest. The satellite services thus provided by petitioner enable said
international carriers to serve the public with indispensable communication services, such as overseas
telephone, telex, facsimile, telegrams, high speed data, live television in full color, and television
standard conversion from European to American or vice versa.
Under Section 5 of Republic Act No. 5514, petitioner was exempt from the jurisdiction of the then Public
Service Commission, now respondent NTC. However, pursuant to Executive Order No. 196 issued on
June 17, 1987, petitioner was placed under the jurisdiction, control and regulation of respondent NTC,
including all its facilities and services and the fixing of rates. Implementing said Executive Order No. 196,
respondents required petitioner to apply for the requisite certificate of public convenience and necessity
covering its facilities and the services it renders, as well as the corresponding authority to charge rates
therefor.
Consequently, under date of September 9, 1987, petitioner filed with respondent NTC an application
4

for authority to continue operating and maintaining the same facilities it has been continuously operating
and maintaining since 1967, to continue providing the international satellite communications services it
has likewise been providing since 1967, and to charge the current rates applied for in rendering such
48

services. Pending hearing, it also applied for a provisional authority so that it can continue to operate
and maintain the above mentioned facilities, provide the services and charge therefor the aforesaid rates
therein applied for.
On September 16, 1987, petitioner was granted a provisional authority to continue operating its existing
facilities, to render the services it was then offering, and to charge the rates it was then charging. This
authority was valid for six (6) months from the date of said order.
5
When said provisional authority
expired on March 17, 1988, it was extended for another six (6) months, or up to September 16, 1988.
The NTC order now in controversy had further extended the provisional authority of the petitioner for
another six (6) months, counted from September 16, 1988, but it directed the petitioner to charge
modified reduced rates through a reduction of fifteen percent (15%) on the present authorized rates.
Respondent Commissioner ordered said reduction on the following ground:
The Commission in its on-going review of present service rates takes note that after an
initial evaluation by the Rates Regulation Division of the Common Carriers Authorization
Department of the financial statements of applicant, there is merit in a REDUCTION in
some of applicant's rates, subject to further reductions, should the Commission finds
(sic) in its further evaluation that more reduction should be effected either on the basis of
a provisional authorization or in the final consideration of the case.
6

PHILCOMSAT assails the above-quoted order for the following reasons:
1. The enabling act (Executive Order No. 546) of respondent NTC empowering it to fix rates for public
service communications does not provide the necessary standards constitutionally required, hence there
is an undue delegation of legislative power, particularly the adjudicatory powers of NTC;
2. Assuming arguendo that the rate-fixing power was properly and constitutionally conferred, the same
was exercised in an unconstitutional manner, hence it is ultra vires, in that (a) the questioned order
violates procedural due process for having been issued without prior notice and hearing; and (b) the rate
reduction it imposes is unjust, unreasonable and confiscatory, thus constitutive of a violation of
substantive due process.
I. Petitioner asseverates that nowhere in the provisions of Executive Order No. 546, providing for the
creation of respondent NTC and granting its rate-fixing powers, nor of Executive Order No. 196, placing
petitioner under the jurisdiction of respondent NTC, can it be inferred that respondent NTC is guided by
any standard in the exercise of its rate-fixing and adjudicatory powers. While petitioner in its petition-in-
chief raised the issue of undue delegation of legislative power, it subsequently clarified its said
submission to mean that the order mandating a reduction of certain rates is undue delegation not of
legislative but of quasi-judicial power to respondent NTC, the exercise of which allegedly requires an
express conferment by the legislative body.
Whichever way it is presented, petitioner is in effect questioning the constitutionality of Executive Orders
Nos. 546 and 196 on the ground that the same do not fix a standard for the exercise of the power therein
conferred.
We hold otherwise.
Fundamental is the rule that delegation of legislative power may be sustained only upon the ground that
some standard for its exercise is provided and that the legislature in making the delegation has
prescribed the manner of the exercise of the delegated power. Therefore, when the administrative
agency concerned, respondent NTC in this case, establishes a rate, its act must both be non-
confiscatory and must have been established in the manner prescribed by the legislature; otherwise, in
the absence of a fixed standard, the delegation of power becomes unconstitutional. In case of a
49

delegation of rate-fixing power, the only standard which the legislature is required to prescribe for the
guidance of the administrative authority is that the rate be reasonable and just. However, it has been
held that even in the absence of an express requirement as to reasonableness, this standard may be
implied.
7

It becomes important then to ascertain the nature of the power delegated to respondent NTC and the
manner required by the statute for the lawful exercise thereof.
Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is empowered, among others, to
determine and prescribe rates pertinent to the operation of public service communications which
necessarily include the power to promulgate rules and regulations in connection therewith. And, under
Section 15(g) of Executive Order No. 546, respondent NTC should be guided by the requirements of
public safety, public interest and reasonable feasibility of maintaining effective competition of private
entities in communications and broadcasting facilities. Likewise, in Section 6(d) thereof, which provides
for the creation of the Ministry of Transportation and Communications with control and supervision over
respondent NTC, it is specifically provided that the national economic viability of the entire network or
components of the communications systems contemplated therein should be maintained at reasonable
rates. We need not go into an in-depth analysis of the pertinent provisions of the law in order to conclude
that respondent NTC, in the exercise of its rate-fixing power, is limited by the requirements of public
safety, public interest, reasonable feasibility and reasonable rates, which conjointly more than satisfy the
requirements of a valid delegation of legislative power.
II. On another tack, petitioner submits that the questioned order violates procedural due process
because it was issued motu proprio, without notice to petitioner and without the benefit of a hearing.
Petitioner laments that said order was based merely on an "initial evaluation," which is a unilateral
evaluation, but had petitioner been given an opportunity to present its side before the order in question
was issued, the confiscatory nature of the rate reduction and the consequent deterioration of the public
service could have been shown and demonstrated to respondents. Petitioner argues that the function
involved in the rate fixing-power of NTC is adjudicatory and hence quasi-judicial, not quasi- legislative;
thus, notice and hearing are necessary and the absence thereof results in a violation of due process.
Respondents admit that the application of a policy like the fixing of rates as exercised by administrative
bodies is quasi-judicial rather than quasi-legislative: that where the function of the administrative agency
is legislative, notice and hearing are not required, but where an order applies to a named person, as in
the instant case, the function involved is adjudicatory.
8
Nonetheless, they insist that under the facts
obtaining the order in question need not be preceded by a hearing, not because it was issued pursuant
to respondent NTC's legislative function but because the assailed order is merely interlocutory, it being
an incident in the ongoing proceedings on petitioner's application for a certificate of public convenience;
and that petitioner is not the only primary source of data or information since respondent is currently
engaged in a continuing review of the rates charged.
We find merit in petitioner's contention.
In Vigan Electric Light Co., Inc. vs. Public Service Commission,
9
we made a categorical classification as
to when the rate-filing power of administrative bodies is quasi-judicial and when it is legislative, thus:
Moreover, although the rule-making power and even the power to fix rates- when such
rules and/or rates are meant to apply to all enterprises of a given kind throughout the
Philippines-may partake of a legislative character, such is not the nature of the order
complained of. Indeed, the same applies exclusively to petitioner herein. What is more, it
is predicated upon the finding of fact-based upon a report submitted by the General
Auditing Office-that petitioner is making a profit of more than 12% of its invested capital,
which is denied by petitioner. Obviously, the latter is entitled to cross-examine the maker
of said report, and to introduce evidence to disprove the contents thereof and/or explain
or complement the same, as well as to refute the conclusion drawn therefrom by the
50

respondent. In other words, in making said finding of fact, respondent performed a
function partaking of a quasi-judicial character, the valid exercise of which demands
previous notice and hearing.
This rule was further explained in the subsequent case of The Central Bank of the Philippines vs.
Cloribel, et al.
10
to wit:
It is also clear from the authorities that where the function of the administrative body is
legislative, notice of hearing is not required by due process of law (See Oppenheimer,
Administrative Law, 2 Md. L.R. 185, 204, supra, where it is said: 'If the nature of the
administrative agency is essentially legislative, the requirements of notice and hearing
are not necessary. The validity of a rule of future action which affects a group, if vested
rights of liberty or property are not involved, is not determined according to the same
rules which apply in the case of the direct application of a policy to a specific individual)
... It is said in 73 C.J.S. Public Administrative Bodies and Procedure, sec. 130, pages
452 and 453: 'Aside from statute, the necessity of notice and hearing in an administrative
proceeding depends on the character of the proceeding and the circumstances involved.
In so far as generalization is possible in view of the great variety of administrative
proceedings, it may be stated as a general rule that notice and hearing are not essential
to the validity of administrative action where the administrative body acts in the exercise
of executive, administrative, or legislative functions; but where a public administrative
body acts in a judicial or quasi-judicial matter, and its acts are particular and immediate
rather than general and prospective, the person whose rights or property may be
affected by the action is entitled to notice and hearing.
11

The order in question which was issued by respondent Alcuaz no doubt contains all the attributes of a
quasi-judicial adjudication. Foremost is the fact that said order pertains exclusively to petitioner and to
no other. Further, it is premised on a finding of fact, although patently superficial, that there is merit in a
reduction of some of the rates charged- based on an initial evaluation of petitioner's financial statements-
without affording petitioner the benefit of an explanation as to what particular aspect or aspects of the
financial statements warranted a corresponding rate reduction. No rationalization was offered nor were
the attending contingencies, if any, discussed, which prompted respondents to impose as much as a
fifteen percent (15%) rate reduction. It is not far-fetched to assume that petitioner could be in a better
position to rationalize its rates vis-a-vis the viability of its business requirements. The rates it charges
result from an exhaustive and detailed study it conducts of the multi-faceted intricacies attendant to a
public service undertaking of such nature and magnitude. We are, therefore, inclined to lend greater
credence to petitioner's ratiocination that an immediate reduction in its rates would adversely affect its
operations and the quality of its service to the public considering the maintenance requirements, the
projects it still has to undertake and the financial outlay involved. Notably, petitioner was not even
afforded the opportunity to cross-examine the inspector who issued the report on which respondent NTC
based its questioned order.
At any rate, there remains the categorical admission made by respondent NTC that the questioned order
was issued pursuant to its quasi-judicial functions. It, however, insists that notice and hearing are not
necessary since the assailed order is merely incidental to the entire proceedings and, therefore,
temporary in nature. This postulate is bereft of merit.
While respondents may fix a temporary rate pending final determination of the application of petitioner,
such rate-fixing order, temporary though it may be, is not exempt from the statutory procedural
requirements of notice and hearing, as well as the requirement of reasonableness. Assuming that such
power is vested in NTC, it may not exercise the same in an arbitrary and confiscatory manner.
Categorizing such an order as temporary in nature does not perforce entail the applicability of a different
rule of statutory procedure than would otherwise be applied to any other order on the same matter
unless otherwise provided by the applicable law. In the case at bar, the applicable statutory provision is
Section 16(c) of the Public Service Act which provides:
51

Section 16. Proceedings of the Commission, upon notice and hearing the Commission
shall have power, upon proper notice and hearing in accordance with the rules and
provisions of this Act, subject to the limitations and exceptions mentioned and saving
provisions to the contrary:
xxx xxx xxx
(c) To fix and determine individual or joint rates, ... which shall be imposed, observed and
followed thereafter by any public service; ...
There is no reason to assume that the aforesaid provision does not apply to respondent NTC, there
being no limiting, excepting, or saving provisions to the contrary in Executive Orders Nos. 546 and 196.
It is thus clear that with regard to rate-fixing, respondent has no authority to make such order without first
giving petitioner a hearing, whether the order be temporary or permanent, and it is immaterial whether
the same is made upon a complaint, a summary investigation, or upon the commission's own motion as
in the present case. That such a hearing is required is evident in respondents' order of September 16,
1987 in NTC Case No. 87-94 which granted PHILCOMSAT a provisional authority "to continue operating
its existing facilities, to render the services it presently offers, and to charge the rates as reduced by
them "under the condition that "(s)ubject to hearing and the final consideration of the merit of this
application, the Commission may modify, revise or amend the rates ..."
12

While it may be true that for purposes of rate-fixing respondents may have other sources of information
or data, still, since a hearing is essential, respondent NTC should act solely on the basis of the evidence
before it and not on knowledge or information otherwise acquired by it but which is not offered in
evidence or, even if so adduced, petitioner was given no opportunity to controvert.
Again, the order requires the new reduced rates to be made effective on a specified date. It becomes a
final legislative act as to the period during which it has to remain in force pending the final determination
of the case.
13
An order of respondent NTC prescribing reduced rates, even for a temporary period, could
be unjust, unreasonable or even confiscatory, especially if the rates are unreasonably low, since the
utility permanently loses its just revenue during the prescribed period. In fact, such order is in effect final
insofar as the revenue during the period covered by the order is concerned. Upon a showing, therefore,
that the order requiring a reduced rate is confiscatory, and will unduly deprive petitioner of a reasonable
return upon its property, a declaration of its nullity becomes inductible, which brings us to the issue on
substantive due process.
III. Petitioner contends that the rate reduction is confiscatory in that its implementation would virtually
result in a cessation of its operations and eventual closure of business. On the other hand, respondents
assert that since petitioner is operating its communications satellite facilities through a legislative
franchise, as such grantee it has no vested right therein. What it has is merely a privilege or license
which may be revoked at will by the State at any time without necessarily violating any vested property
right of herein petitioner. While petitioner concedes this thesis of respondent, it counters that the
withdrawal of such privilege should nevertheless be neither whimsical nor arbitrary, but it must be fair
and reasonable.
There is no question that petitioner is a mere grantee of a legislative franchise which is subject to
amendment, alteration, or repeal by Congress when the common good so requires.
14
Apparently,
therefore, such grant cannot be unilaterally revoked absent a showing that the termination of the
operation of said utility is required by the common good.
The rule is that the power of the State to regulate the conduct and business of public utilities is limited by
the consideration that it is not the owner of the property of the utility, or clothed with the general power of
management incident to ownership, since the private right of ownership to such property remains and is
52

not to be destroyed by the regulatory power. The power to regulate is not the power to destroy useful
and harmless enterprises, but is the power to protect, foster, promote, preserve, and control with due
regard for the interest, first and foremost, of the public, then of the utility and of its patrons. Any
regulation, therefore, which operates as an effective confiscation of private property or constitutes an
arbitrary or unreasonable infringement of property rights is void, because it is repugnant to the
constitutional guaranties of due process and equal protection of the laws.
15

Hence, the inherent power and authority of the State, or its authorized agent, to regulate the rates
charged by public utilities should be subject always to the requirement that the rates so fixed shall be
reasonable and just. A commission has no power to fix rates which are unreasonable or to regulate them
arbitrarily. This basic requirement of reasonableness comprehends such rates which must not be so low
as to be confiscatory, or too high as to be oppressive.
16

What is a just and reasonable rate is not a question of formula but of sound business judgment based
upon the evidence
17
it is a question of fact calling for the exercise of discretion, good sense, and a fair,
enlightened and independent judgment.
18
In determining whether a rate is confiscatory, it is essential
also to consider the given situation, requirements and opportunities of the utility. A method often
employed in determining reasonableness is the fair return upon the value of the property to the public
utility. Competition is also a very important factor in determining the reasonableness of rates since a
carrier is allowed to make such rates as are necessary to meet competition.
19

A cursory perusal of the assailed order reveals that the rate reduction is solely and primarily based on
the initial evaluation made on the financial statements of petitioner, contrary to respondent NTC's
allegation that it has several other sources of information without, however, divulging such sources.
Furthermore, it did not as much as make an attempt to elaborate on how it arrived at the prescribed
rates. It just perfunctorily declared that based on the financial statements, there is merit for a rate
reduction without any elucidation on what implications and conclusions were necessarily inferred by it
from said statements. Nor did it deign to explain how the data reflected in the financial statements
influenced its decision to impose a rate reduction.
On the other hand, petitioner may likely suffer a severe drawback, with the consequent detriment to the
public service, should the order of respondent NTC turn out to be unreasonable and improvident. The
business in which petitioner is engaged is unique in that its machinery and equipment have always to be
taken in relation to the equipment on the other end of the transmission arrangement. Any lack, aging,
acquisition, rehabilitation, or refurbishment of machinery and equipment necessarily entails a major
adjustment or innovation on the business of petitioner. As pointed out by petitioner, any change in the
sending end abroad has to be matched with the corresponding change in the receiving end in the
Philippines. Conversely, any in the receiving end abroad has to be matched with the corresponding
change in the sending end in the Philippines. An inability on the part of petitioner to meet the
variegations demanded be technology could result in a deterioration or total failure of the service of
satellite communications.
At present, petitioner is engaged in several projects aimed at refurbishing, rehabilitating, and renewing
its machinery and equipment in order to keep up with the continuing charges of the times and to
maintain its facilities at a competitive level with the technological advances abroad. There projected
undertakings were formulated on the premise that rates are maintained at their present or at reasonable
levels. Hence, an undue reduction thereof may practically lead to a cessation of its business. While we
concede the primacy of the public interest in an adequate and efficient service, the same is not
necessarily to be equated with reduced rates. Reasonableness in the rates assumes that the same is
fair to both the public utility and the consumer.
Consequently, we hold that the challenged order, particularly on the issue of rates provided therein,
being violative of the due process clause is void and should be nullified. Respondents should now
proceed, as they should heretofore have done, with the hearing and determination of petitioner's
pending application for a certificate of public convenience and necessity and in which proceeding the
53

subject of rates involved in the present controversy, as well as other matter involved in said application,
be duly adjudicated with reasonable dispatch and with due observance of our pronouncements herein.
WHEREFORE, the writ prayed for is GRANTED and the order of respondents, dated September 2,
1988, in NTC Case No. 87-94 is hereby SET ASIDE. The temporary restraining order issued under our
resolution of September 13, 1988, as specifically directed against the aforesaid order of respondents on
the matter of existing rates on petitioner's present authorized services, is hereby made permanent.
SO ORDERED.
Fernan, (C.J.), Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes,
Grio-Aquino and Medialdea, JJ., concur. Padilla, J., took no part.



















54

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-46496 February 27, 1940
ANG TIBAY, represented by TORIBIO TEODORO, manager and propietor, and
NATIONAL WORKERS BROTHERHOOD, petitioners,
vs.
THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., respondents.
Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial
Relations.
Antonio D. Paguia for National Labor Unon.
Claro M. Recto for petitioner "Ang Tibay".
Jose M. Casal for National Workers' Brotherhood.
LAUREL, J .:
The Solicitor-General in behalf of the respondent Court of Industrial Relations in the above-entitled case
has filed a motion for reconsideration and moves that, for the reasons stated in his motion, we
reconsider the following legal conclusions of the majority opinion of this Court:
1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que
no sea para una determinada, termina o bien por voluntad de cualquiera de las partes o cada
vez que ilega el plazo fijado para el pago de los salarios segun costumbre en la localidad o
cunado se termine la obra;
2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya
colectivamente, con ell, sin tiempo fijo, y que se han visto obligados a cesar en sus tarbajos por
haberse declarando paro forzoso en la fabrica en la cual tarbajan, dejan de ser empleados u
obreros de la misma;
3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus
osbreros sin tiempo fijo de duracion y sin ser para una obra determiminada y que se niega a
readmitir a dichos obreros que cesaron como consecuencia de un paro forzoso, no es culpable
de practica injusta in incurre en la sancion penal del articulo 5 de la Ley No. 213 del
Commonwealth, aunque su negativa a readmitir se deba a que dichos obreros pertenecen a un
determinado organismo obrero, puesto que tales ya han dejado deser empleados suyos por
terminacion del contrato en virtud del paro.
The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgement
rendered by the majority of this Court and the remanding of the case to the Court of Industrial Relations
for a new trial, and avers:
1. That Toribio Teodoro's claim that on September 26, 1938, there was shortage of leather soles
in ANG TIBAY making it necessary for him to temporarily lay off the members of the National
Labor Union Inc., is entirely false and unsupported by the records of the Bureau of Customs and
the Books of Accounts of native dealers in leather.
55

2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme to
systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the
Philippine Army.
3. That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re supposed
delay of leather soles from the States) was but a scheme to systematically prevent the forfeiture
of this bond despite the breach of his CONTRACT with the Philippine Army.
4. That the National Worker's Brotherhood of ANG TIBAY is a company or employer union
dominated by Toribio Teodoro, the existence and functions of which are illegal. (281 U.S., 548,
petitioner's printed memorandum, p. 25.)
5. That in the exercise by the laborers of their rights to collective bargaining, majority rule and
elective representation are highly essential and indispensable. (Sections 2 and 5,
Commonwealth Act No. 213.)
6. That the century provisions of the Civil Code which had been (the) principal source of
dissensions and continuous civil war in Spain cannot and should not be made applicable in
interpreting and applying the salutary provisions of a modern labor legislation of American origin
where the industrial peace has always been the rule.
7. That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating against
the National Labor Union, Inc., and unjustly favoring the National Workers' Brotherhood.
8. That the exhibits hereto attached are so inaccessible to the respondents that even with the
exercise of due diligence they could not be expected to have obtained them and offered as
evidence in the Court of Industrial Relations.
9. That the attached documents and exhibits are of such far-reaching importance and effect that
their admission would necessarily mean the modification and reversal of the judgment rendered
herein.
The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the
respondent National Labor Union, Inc.
In view of the conclusion reached by us and to be herein after stead with reference to the motion for a
new trial of the respondent National Labor Union, Inc., we are of the opinion that it is not necessary to
pass upon the motion for reconsideration of the Solicitor-General. We shall proceed to dispose of the
motion for new trial of the respondent labor union. Before doing this, however, we deem it necessary, in
the interest of orderly procedure in cases of this nature, in interest of orderly procedure in cases of this
nature, to make several observations regarding the nature of the powers of the Court of Industrial
Relations and emphasize certain guiding principles which should be observed in the trial of cases
brought before it. We have re-examined the entire record of the proceedings had before the Court of
Industrial Relations in this case, and we have found no substantial evidence that the exclusion of the 89
laborers here was due to their union affiliation or activity. The whole transcript taken contains what
transpired during the hearing and is more of a record of contradictory and conflicting statements of
opposing counsel, with sporadic conclusion drawn to suit their own views. It is evident that these
statements and expressions of views of counsel have no evidentiary value.
The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its
creation (Commonwealth Act No. 103). It is more an administrative than a part of the integrated judicial
system of the nation. It is not intended to be a mere receptive organ of the Government. Unlike a court of
justice which is essentially passive, acting only when its jurisdiction is invoked and deciding only cases
that are presented to it by the parties litigant, the function of the Court of Industrial Relations, as will
56

appear from perusal of its organic law, is more active, affirmative and dynamic. It not only exercises
judicial or quasi-judicial functions in the determination of disputes between employers and employees
but its functions in the determination of disputes between employers and employees but its functions are
far more comprehensive and expensive. It has jurisdiction over the entire Philippines, to consider,
investigate, decide, and settle any question, matter controversy or dispute arising between, and/or
affecting employers and employees or laborers, and regulate the relations between them, subject to, and
in accordance with, the provisions of Commonwealth Act No. 103 (section 1). It shall take cognizance or
purposes of prevention, arbitration, decision and settlement, of any industrial or agricultural dispute
causing or likely to cause a strike or lockout, arising from differences as regards wages, shares or
compensation, hours of labor or conditions of tenancy or employment, between landlords and tenants or
farm-laborers, provided that the number of employees, laborers or tenants of farm-laborers involved
exceeds thirty, and such industrial or agricultural dispute is submitted to the Court by the Secretary of
Labor or by any or both of the parties to the controversy and certified by the Secretary of labor as
existing and proper to be by the Secretary of Labor as existing and proper to be dealth with by the Court
for the sake of public interest. (Section 4, ibid.) It shall, before hearing the dispute and in the course of
such hearing, endeavor to reconcile the parties and induce them to settle the dispute by amicable
agreement. (Paragraph 2, section 4, ibid.) When directed by the President of the Philippines, it shall
investigate and study all industries established in a designated locality, with a view to determinating the
necessity and fairness of fixing and adopting for such industry or locality a minimum wage or share of
laborers or tenants, or a maximum "canon" or rental to be paid by the "inquilinos" or tenants or less to
landowners. (Section 5, ibid.) In fine, it may appeal to voluntary arbitration in the settlement of industrial
disputes; may employ mediation or conciliation for that purpose, or recur to the more effective system of
official investigation and compulsory arbitration in order to determine specific controversies between
labor and capital industry and in agriculture. There is in reality here a mingling of executive and judicial
functions, which is a departure from the rigid doctrine of the separation of governmental powers.
In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673, promulgated September
13, 1939, we had occasion to joint out that the Court of Industrial Relations et al., G. R. No. 46673,
promulgated September 13, 1939, we had occasion to point out that the Court of Industrial Relations is
not narrowly constrained by technical rules of procedure, and the Act requires it to "act according to
justice and equity and substantial merits of the case, without regard to technicalities or legal forms and
shall not be bound by any technicalities or legal forms and shall not be bound by any technical rules of
legal evidence but may inform its mind in such manner as it may deem just and equitable." (Section 20,
Commonwealth Act No. 103.) It shall not be restricted to the specific relief claimed or demands made by
the parties to the industrial or agricultural dispute, but may include in the award, order or decision any
matter or determination which may be deemed necessary or expedient for the purpose of settling the
dispute or of preventing further industrial or agricultural disputes. (section 13, ibid.) And in the light of this
legislative policy, appeals to this Court have been especially regulated by the rules recently promulgated
by the rules recently promulgated by this Court to carry into the effect the avowed legislative purpose.
The fact, however, that the Court of Industrial Relations may be said to be free from the rigidity of certain
procedural requirements does not mean that it can, in justifiable cases before it, entirely ignore or
disregard the fundamental and essential requirements of due process in trials and investigations of an
administrative character. There are primary rights which must be respected even in proceedings of this
character:
(1) The first of these rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit evidence in support thereof. In the
language of Chief Hughes, in Morgan v. U.S., 304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129,
"the liberty and property of the citizen shall be protected by the rudimentary requirements of fair
play.
(2) Not only must the party be given an opportunity to present his case and to adduce evidence
tending to establish the rights which he asserts but the tribunal must consider the evidence
presented. (Chief Justice Hughes in Morgan v. U.S. 298 U.S. 468, 56 S. Ct. 906, 80 law. ed.
1288.) In the language of this court in Edwards vs. McCoy, 22 Phil., 598, "the right to adduce
57

evidence, without the corresponding duty on the part of the board to consider it, is vain. Such
right is conspicuously futile if the person or persons to whom the evidence is presented can
thrust it aside without notice or consideration."
(3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a
necessity which cannot be disregarded, namely, that of having something to support it is a
nullity, a place when directly attached." (Edwards vs. McCoy, supra.) This principle emanates
from the more fundamental is contrary to the vesting of unlimited power anywhere. Law is both a
grant and a limitation upon power.
(4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs.
Agustin, G.R. No. 45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the
evidence must be "substantial." (Washington, Virginia and Maryland Coach Co. v. national labor
Relations Board, 301 U.S. 142, 147, 57 S. Ct. 648, 650, 81 Law. ed. 965.) It means such
relevant evidence as a reasonable mind accept as adequate to support a conclusion."
(Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989;
National Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-
Stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The
statute provides that "the rules of evidence prevailing in courts of law and equity shall not be
controlling.' The obvious purpose of this and similar provisions is to free administrative boards
from the compulsion of technical rules so that the mere admission of matter which would be
deemed incompetent inn judicial proceedings would not invalidate the administrative order.
(Interstate Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed.
860; Interstate Commerce Commission v. Louisville and Nashville R. Co., 227 U.S. 88, 93 33 S.
Ct. 185, 187, 57 Law. ed. 431; United States v. Abilene and Southern Ry. Co. S. Ct. 220, 225,
74 Law. ed. 624.) But this assurance of a desirable flexibility in administrative procedure does
not go far as to justify orders without a basis in evidence having rational probative force. Mere
uncorroborated hearsay or rumor does not constitute substantial evidence. (Consolidated Edison
Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)"
(5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected. (Interstate Commence Commission
vs. L. & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining the
administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their
right to know and meet the case against them. It should not, however, detract from their duty
actively to see that the law is enforced, and for that purpose, to use the authorized legal methods
of securing evidence and informing itself of facts material and relevant to the controversy.
Boards of inquiry may be appointed for the purpose of investigating and determining the facts in
any given case, but their report and decision are only advisory. (Section 9, Commonwealth Act
No. 103.) The Court of Industrial Relations may refer any industrial or agricultural dispute or any
matter under its consideration or advisement to a local board of inquiry, a provincial fiscal. a
justice of the peace or any public official in any part of the Philippines for investigation, report
and recommendation, and may delegate to such board or public official such powers and
functions as the said Court of Industrial Relations may deem necessary, but such delegation
shall not affect the exercise of the Court itself of any of its powers. (Section 10, ibid.)
(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy, and not simply accept the
views of a subordinate in arriving at a decision. It may be that the volume of work is such that it is
literally Relations personally to decide all controversies coming before them. In the United States
the difficulty is solved with the enactment of statutory authority authorizing examiners or other
subordinates to render final decision, with the right to appeal to board or commission, but in our
case there is no such statutory authority.
58

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in
such a manner that the parties to the proceeding can know the various issues involved, and the
reasons for the decision rendered. The performance of this duty is inseparable from the authority
conferred upon it.
In the right of the foregoing fundamental principles, it is sufficient to observe here that, except as to the
alleged agreement between the Ang Tibay and the National Worker's Brotherhood (appendix A), the
record is barren and does not satisfy the thirst for a factual basis upon which to predicate, in a national
way, a conclusion of law.
This result, however, does not now preclude the concession of a new trial prayed for the by respondent
National Labor Union, Inc., it is alleged that "the supposed lack of material claimed by Toribio Teodoro
was but a scheme adopted to systematically discharged all the members of the National Labor Union
Inc., from work" and this avernment is desired to be proved by the petitioner with the "records of the
Bureau of Customs and the Books of Accounts of native dealers in leather"; that "the National Workers
Brotherhood Union of Ang Tibay is a company or employer union dominated by Toribio Teodoro, the
existence and functions of which are illegal." Petitioner further alleges under oath that the exhibits
attached to the petition to prove his substantial avernments" are so inaccessible to the respondents that
even within the exercise of due diligence they could not be expected to have obtained them and offered
as evidence in the Court of Industrial Relations", and that the documents attached to the petition "are of
such far reaching importance and effect that their admission would necessarily mean the modification
and reversal of the judgment rendered herein." We have considered the reply of Ang Tibay and its
arguments against the petition. By and large, after considerable discussions, we have come to the
conclusion that the interest of justice would be better served if the movant is given opportunity to present
at the hearing the documents referred to in his motion and such other evidence as may be relevant to
the main issue involved. The legislation which created the Court of Industrial Relations and under which
it acts is new. The failure to grasp the fundamental issue involved is not entirely attributable to the
parties adversely affected by the result. Accordingly, the motion for a new trial should be and the same
is hereby granted, and the entire record of this case shall be remanded to the Court of Industrial
Relations, with instruction that it reopen the case, receive all such evidence as may be relevant and
otherwise proceed in accordance with the requirements set forth hereinabove. So ordered.
Avancea, C. J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.









59

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 99327 May 27, 1993
ATENEO DE MANILA UNIVERSITY, FATHER JOAQUIN BERNAS, S. J., DEAN CYNTHIA ROXAS-
DEL CASTILLO, JUDGE RUPERTO KAPUNAN, JR., JUSTICE VENICIO ESCOLIN, FISCAL MIGUEL
ALBAR, ATTYS. MARCOS HERRAS, FERDINAND CASIS, JOSE CLARO TESORO, RAMON
CAGUIOA, and RAMON ERENETA. petitioners,
vs.
HON. IGNACIO M. CAPULONG, Presiding Judge of the RTC-Makati, Br. 134, ZOSIMO MENDOZA,
JR. ERNEST MONTECILLO, ADEL ABAS, JOSEPH LLEDO AMADO SABBAN, DALMACIO LIM JR.,
MANUEL ESCONA and JUDE FERNANDEZ, respondents.
Bengzon, Zarraga, Narciso, Cudala, Pecson, Benson & Jimenes for petitioners.
Romulo, Mabanta, Buenaventura, Sayoc & De Los Angeles for petitioner Cynthia Roxas-del Castillo.
Fabregas, Calida & Remollo for private respondents.
ROMERO, J.:
In 1975, the Court was confronted with a mandamus proceeding to compel the Faculty Admission
Committee of the Loyola School of Theology, a religious seminary which has a working arrangement
with the Ateneo de Manila University regarding accreditation of common students, to allow petitioner
who had taken some courses therein for credit during summer, to continue her studies.
1
Squarely
meeting the issue, we dismissed the petition on the ground that students in the position of petitioner
possess, not a right, but a privilege, to be admitted to the institution. Not having satisfied the prime and
indispensable requisite of a mandamus proceeding since there is no duty, much less a clear duty, on the
part of the respondent to admit the petitioner, the petition did not prosper.
In support of its decision, the Court invoked academic freedom of institutions of higher learning, as
recognized by the Constitution, the concept encompassing the right of a school to choose its students.
Eighteen (18) years later, the right of a University to refuse admittance to its students, this time in
Ateneo de Manila University proper, is again challenged.
Whereas, in the Garcia case referred to in the opening paragraph, the individual concerned was not a
regular student, the respondents in the case at bar, having been previously enrolled in the University,
seek re-admission. Moreover, in the earlier case, the petitioner was refused admittance, not on such
considerations as personality traits and character orientation, or even inability to meet the institution's
academic or intellectual standards, but because of her behavior in the classroom. The school pointedly
informed her that ". . . it would seem to be in your best interest to work with a Faculty that is more
compatible with your orientations."
On the other hand, students who are now being refused admission into petitioner University have been
found guilty of violating Rule No. 3 of the Ateneo Law School Rules on Discipline which prohibits
participation in hazing activities. The case attracted much publicity due to the death of one of the
neophytes and serious physical injuries inflicted on another.
60

Herein lies an opportunity for the Court to add another dimension to the concept of academic freedom of
institutions of higher learning, this time a case fraught with social and emotional overtones.
The facts which gave rise to this case which is far from novel, are as follows:
As a requisite to membership, the Aquila Legis, a fraternity organized in the Ateneo Law School, held its
initiation rites on February 8, 9 and 10, 1991, for students interested in joining its ranks. As a result of
such initiation rites, Leonardo "Lennie" H. Villa, a first year student of petitioner university, died of
serious physical injuries at Chinese General Hospital on February 10, 1991. He was not the lone victim,
though, for another freshman by the name of Bienvenido Marquez was also hospitalized at the Capitol
Medical Center for acute renal failure occasioned by the serious physical injuries inflicted upon him on
the same occasion.
In a notice dated February 11, 1991, petitioner Dean Cynthia del Castillo created a Joint Administration-
Faculty-Student Investigating Committee
2
which was tasked to investigate and submit a report within 72
hours on the circumstances surrounding the death of Lennie Villa. Said notice also required respondent
students to submit their written statements within twenty-four (24) hours from receipt. Although
respondent students received a copy of the written notice, they failed to file a reply. In the meantime,
they were placed on preventive suspension.
3
Through their respective counsels, they requested copies
of the charges and pertinent documents or affidavits.
In a notice dated February 14, 1991, the Joint Administration-Faculty-Student Investigating Committee,
after receiving the written statements and hearing the testimonies of several witness, found a prima facie
case against respondent students for violation of Rule 3 of the Law School Catalogue entitled
"Discipline."
4

Respondent students were then required to file their written answers to the formal charge on or before
February 18, 1991; otherwise, they would be deemed to have waived their right to present their
defenses.
On February 20, 1991, petitioner Dean created a Disciplinary Board composed of petitioners Judge
Ruperto Kapunan, Justice Venicio Escolin, Atty. Marcos Herras, Fiscal Miguel Albar and Atty. Ferdinand
Casis, to hear the charges against respondent students.
In a letter dated February 20, 1991, respondent students were informed that they had violated Rule No.
3 of the Rules on Discipline contained in the Law School Catalogue. Said letter also states: "The
complaint/charge against you arose from initiations held on February 8-10, 1991. The evidence against
you consist of testimonies of students, showing your participation in acts prohibited by the School
regulations." Finally, it ordered respondent students to file their written answers to the above charge on
or before February 22 1991, otherwise they would be deemed to have waived their defenses.
5

In a motion dated February 21, 1991, respondent students, through counsel, requested that the
investigation against them be held in abeyance, pending action on their request for copies of the
evidence against them.
6

Respondent students were then directed by the Board to appear before it at a hearing on February 28,
1991 to clarify their answer with regard to the charges filed by the investigating committee for violation of
Rule No. 3. However, in a letter to a petitioners dated February 27, 1991, counsel for respondent
students moved to postpone the hearing from February 28, 1991 to March 1, 1991.
7

Subsequently, respondent students were directed to appear on March 2, 1991 for clarificatory questions.

8
They were also informed that:
61

a) The proceedings will be summary in nature in accordance with the rules laid down in
the case of Guzman vs. National University;
9

b) Petitioners have no right to cross-examine the affiants-neophytes;
c) Hazing which is not defined in the School catalogue shall be defined in accordance
with the proposed bill of Sen. Jose Lina, Senate Bill No. 3815;
d) The Board will take into consideration the degree of participation of the petitioners in
the alleged hazing incident in imposing the penalty;
e) The Decision of the Board shall be appealable to the President of the University, i. e.,
Respondent Joaquin Bernas S. J.
On March 5, 1991, petitioner Bernas wrote Dean Castillo that, "in cases where the Disciplinary Board is
not prepared to impose the penalty of dismissal, I would prefer that the Board leave the decision on the
penalty to the Administration so that this case be decided not just on the Law School level but also on
the University level."
10

In a resolution dated March 9, 1991, the Board found respondent students guilty of violating Rule No. 3
of the Ateneo Law School Rules on Discipline which prohibits participation in hazing activities. The
Board found that respondent students acted as master auxiliaries or "auxies" during the initiation rites of
Aquila Legis, and exercised the "auxies privilege," which allows them to participate in the physical
hazing. Although respondent students claim that they were there to assist and attend to the needs of the
neophytes, actually they were assigned a definite supportive role to play in the organized activity. Their
guilt was heightened by the fact that they made no effort to prevent the infliction of further physical
punishment on the neophytes under their care. The Board considered respondent students part and
parcel of the integral process of hazing. In conclusion, the Board pronounced respondents guilty of
hazing, either by active participation or through acquiescence. However, in view of the lack of unanimity
among the members of the Board on the penalty of dismissal, the Board left the imposition of the penalty
to the University Administration.
11
Petitioner Dean del Castillo waived her prerogative to review the
decision of the Board and left to the President of the University the decision of whether to expel
respondents or not.
Consequently, in a resolution dated March 10, 1991, petitioner Fr. Joaquin G. Bernas, as President of
the Ateneo de Manila University, accepted the factual findings of the Board, thus: "that as Master
Auxiliaries they exercised the 'auxie's privilege;' that even assuming they did not lay hands on the
neophytes," respondents students are still guilty in accordance with the principle that "where two or more
persons act together in the commission of a crime, whether they act through the physical volition of one
or of all, proceeding severally or collectively, each individual whose will contributes to the wrongdoing is
responsible for the whole." Fr. Bernas, in describing the offense which led to the death of Leonardo Villa,
concluded that the "offense of the respondents can be characterized as grave and serious, subversive of
the goals of Christian education and contrary to civilized behavior." Accordingly, he imposed the penalty
of dismissal on all respondent students.
12

In a resolution dated March 18, 1991 and concurred in by petitioner Fr. Bernas,
13
the Board excluded
respondent students Abas and Mendoza from the coverage of the resolution of March 10, 1991,
inasmuch as at the time the latter resolution was promulgated, neither had as yet submitted their case to
the Board. Said resolution also set the investigation of the two students on March 21, 1991.
On March 18, 1991, respondent students filed with the Regional Trial Court of Makati, a petition for
certiorari, prohibition and mandamus with prayer for temporary restraining order and preliminary
injunction
14
alleging that they were currently enrolled as students for the second semester of school year
62

1990-91. Unless a temporary restraining order is issued, they would be prevented from taking their
examinations. The petition principally centered on the alleged lack of due process in their dismissal.
On the same day, Judge Madayag issued a temporary restraining order the enjoining petitioners from
dismissing respondent students and stopping the former from conducting hearings relative to the hazing
incident.
15

Hearings in connection with the issuance of the temporary restraining order were then held. On April 7,
1991, the temporary restraining order were issued on March 18, 1991 lapsed. Consequently, a day after
the expiration of the temporary restraining order, Dean del Castillo created a Special Board composed of
Atty.(s) Jose Claro Tesoro, Ramon Caguioa, and Ramon Ereeta to investigate the charges of hazing
against respondent students Abas and Mendoza.
Respondent students reacted immediately by filing a Supplemental Petition of certiorari, prohibition and
mandamus with prayer for a temporary restraining order and preliminary injunction, to include the
aforesaid members of the Special Board, as additional respondents to the original petition.
16

Petitioners moved to strike out the Supplement Petition arguing that the creation of the Special Board
was totally unrelated to the original petition which alleged lack of due process in the conduct of
investigations by the Disciplinary Board against respondent students; that a supplemental petition
cannot be admitted without the same being set for hearing and that the supplemental petition for the
issuance of a temporary restraining order will, in effect, extend the previous restraining order beyond its
mandatory 20-day lifetime.
17
Acting on the urgent motion to admit the supplemental petition with prayer
for a temporary restraining order, Judge Amin, as pairing judge of respondents Judge Capulong, granted
respondent students' prayer on April 10, 1991.
18

On May 17, 1991, respondent Judge ordered petitioners to reinstate respondent students.
Simultaneously, the court ordered petitioners to conduct special examinations in lieu of the final
examinations which allegedly the students were not allowed to take, and enjoined them to maintain the
status quo with regard to the cases of Adel Abas and Zosimo Mendoza pending final determination of
the issue of the instant case. Lastly, it directed respondent students to file a bond in the amount of
P50,000.00.
19

On the same date, May 17, 1991, the Special Board investigating petitioners Abas and Mendoza and
directed the dropping of their names from its roll of students.
20

The following day or on May 21, 1991, respondent judge issued the writ of preliminary injunction upon
posting by respondents of a bond dated May 17, 1991 in the amount of P50,000.00.
Hence, this special civil action of certiorari under Rule 65 with prayer for the issuance of a temporary
restraining order enjoining the enforcement of the May 17, 1991 order of respondent judge.
21

In the case at bar, we come to grips with two relevant issues on academic freedom, namely: (1) whether
a school is within its rights in expelling students from its academic community pursuant to its disciplinary
rules and moral standards; and (2) whether or not the penalty imposed by the school administration is
proper under the circumstances.
We grant the petition and reverse the order of respondent judge ordering readmission of respondent
students. Respondent judge committed grave abuse of discretion when he ruled that respondent
students had been denied due process in the investigation of the charges against them.
It is the threshold argument of respondent students that the decision of petitioner Fr. Joaquin Bernas, S.
J., then President of the Ateneo de Manila University, to expel them was arrived at without affording
them their right to procedural due process. We are constrained to disagree as we find no indication that
63

such right has been violated. On the contrary, respondent students' rights in a school disciplinary
proceeding, as enunciated in the cases of Guzman v. National University,
22
Alcuaz v. PSBA, Q.C.
Branch
23
and Non v. Dames II
24
have been meticulously respected by petitioners in the various
investigative proceedings held before they were expelled.
Corollary to their contention of denials of due process is their argument that it is Ang Tibay case
25
and
not the Guzman case which is applicable in the case at bar. Though both cases essentially deal with the
requirements of due process, the Guzman case is more apropos to the instant case, since the latter
deals specifically with the minimum standards to be satisfied in the imposition of disciplinary sanctions in
academic institutions, such as petitioner university herein, thus:
(1) the students must be informed in writing of the nature and cause of any accusation
against them; (2) that they shall have the right to answer the charges against them with
the assistance of counsel, if desired: (3) they shall be informed of the evidence against
them (4) they shall have the right to adduce evidence in their own behalf; and (5) the
evidence must be duly considered by the investigating committee or official designated
by the school authorities to hear and decide the case.
26

It cannot seriously be asserted that the above requirements were not met. When, in view of the death of
Leonardo Villa, petitioner Cynthia del Castillo, as Dean of the Ateneo Law School, notified and required
respondent students on February 11, 1991 to submit within twenty-four hours their written statement on
the incident,
27
the records show that instead of filing a reply, respondent students requested through
their counsel, copies of the charges.
28
While of the students mentioned in the February 11, 1991 notice
duly submitted written statements, the others failed to do so. Thus, the latter were granted an extension
of up to February 18, 1991 to file their statements.
29

Indubitably, the nature and cause of the accusation were adequately spelled out in petitioners' notices
dated February 14 and 20, 1991.
30
It is to be noted that the February 20, 1991 letter which quoted Rule
No. 3 of its Rules of Discipline as contained in the Ateneo Law School Catalogue was addressed
individually to respondent students. Petitioners' notices/letters dated February 11, February 14 and 20
clearly show that respondent students were given ample opportunity to adduce evidence in their behalf
and to answer the charges leveled against them.
The requisite assistance of counsel was met when, from the very start of the investigations before the
Joint Administration Faculty-Student Committee, the law firm of Gonzales Batiler and Bilog and
Associates put in its appearance and filed pleadings in behalf of respondent students.
Respondent students may not use the argument that since they were not accorded the opportunity to
see and examine the written statements which became the basis of petitioners' February 14, 1991 order,
they were denied procedural due process.
31
Granting that they were denied such opportunity, the same
may not be said to detract from the observance of due process, for disciplinary cases involving students
need not necessarily include the right to cross examination. An administrative proceeding conducted to
investigate students' participation in a hazing activity need not be clothed with the attributes of a judicial
proceeding. A closer examination of the March 2, 1991 hearing which characterized the rules on the
investigation as being summary in nature and that respondent students have no right to examine
affiants-neophytes, reveals that this is but a reiteration of our previous ruling in Alcuaz.
32

Respondent students' contention that the investigating committee failed to consider their evidence is far
from the truth because the February 14, 1992 ordered clearly states that it was reached only after
receiving the written statements and hearing the testimonies of several witnesses.
33
Similarly, the
Disciplinary Board's resolution dated March 10, 1991 was preceded by a hearing on March 2, 1991
wherein respondent students were summoned to answer clarificatory questions.
64

With regard to the charge of hazing, respondent students fault petitioners for not explicitly defining the
word "hazing" and allege that there is no proof that they were furnished copies of the 1990-91 Ateneo
Law School Catalogue which prohibits hazing. Such flawed sophistry is not worthy of students who
aspire to be future members of the Bar. It cannot be overemphasized that the charge filed before the
Joint Administration-Faculty-Student Investigating Committee and the Disciplinary Board is not a criminal
case requiring proof beyond reasonable doubt but is merely administrative in character. As such, it is not
subject to the rigorous requirements of criminal due process, particularly with respect to the specification
of the charge involved. As we have had occasion to declare in previous cases a similar nature, due
process in disciplinary cases involving students does not entail proceedings and hearings identical to
those prescribed for actions and proceedings in courts of justice.
34
Accordingly, disciplinary charges
against a student need not be drawn with the precision of a criminal information or complaint. Having
given prior notice to the students involved that "hazing" which is not defined in the School Catalogue
shall be defined in accordance with Senate Bill No. 3815, the proposed bill on the subject of Sen. Jose
Lina, petitioners have said what needs to be said. We deem this sufficient for purposes of the
investigation under scrutiny.
Hazing, as a ground for disciplining a students, to the extent of dismissal or expulsion, finds its raison d'
etre in the increasing frequency of injury, even death, inflicted upon the neophytes by their insensate
"masters." Assuredly, it passes the test of reasonableness and absence of malice on the part of the
school authorities. Far from fostering comradeship and esprit d' corps, it has merely fed upon the cruel
and baser instincts of those who aspire to eventual leadership in our country.
Respondent students argue that petitioners are not in a position to file the instant petition under Rule 65
considering that they failed to file a motion for reconsideration first before the trial court, thereby by
passing the latter and the Court of Appeals.
35

It is accepted legal doctrine that an exception to the doctrine of exhaustion of remedies is when the case
involves a question of law,
36
as in this case, where the issue is whether or not respondent students have
been afforded procedural due process prior to their dismissal from petitioner university.
Lastly, respondent students argue that we erred in issuing a Temporary Restraining Order since
petitioners do not stand to suffer irreperable damage in the event that private respondents are allowed to
re-enroll. No one can be so myopic as to doubt that the immediate reinstatement of respondent students
who have been investigated and found by the Disciplinary Board to have violated petitioner university's
disciplinary rules and standards will certainly undermine the authority of the administration of the school.
This we would be most loathe to do.
More importantly, it will seriously impair petitioner university's academic freedom which has been
enshrined in the 1935, 1973 and the present 1987 Constitutions.
At this juncture, it would be meet to recall the essential freedoms subsumed by Justice Felix Frankfurter
in the term "academic freedom" cited in the case of Sweezy v. New Hampshire,
37
thus: (1) who may
teach: (2) what may be taught; (3) how it shall be taught; and (4) who may be admitted to study.
Socrates, the "first of the great moralists of Greece," proud to claim the title "gadfly of the State" has
deservedly earned for himself a respected place in the annals of history as a martyr to the cause of free
intellectual inquiry. To Plato, this great teacher of his was the "best, the most sensible, and the most
sensible, and the most just man of his age." In 399 B.C., he willingly quaffed the goblet of hemlock as
punishment for alleged "corruption" of the youth of Athens. He describes in his own words how this
charge of "corruption," the forerunner of the concept of academic freedom, came about:
Young men of the richer classes, who have not much to do, come about me of their own
accord: they like to heart the pretenders examined, and they often imitate me, and
examine others themselves; there are plenty of person, as they soon discover, who think
65

that they know something, but really know little or nothing; and then those who are
examined by them instead of being angry with themselves are angry with me. This
confounded Socrates, they say; this villainous misleader of youth. And then if somebody
asks them, Why, what evil does he practice or teach? they do not know, and cannot tell;
but in order that they may not appear to be at a loss, they repeat the ready-made
charges which are used against all philosophers about teaching things up in the clouds
and under the earth, and having no gods, and making the worse appear the better
cause; for they do not like to confess that their pretense of knowledge has been detected
which is the truth; and as they are numerous and ambitious and energetic, and are all
in battle array and have persuasive tongues, they have filled your ears with their loud
and inveterate calumnies.
38

Since Socrates, numberless individuals of the same heroic mold have similarly defied the stifling
strictures of authority, whether State, Church, or various interest groups, to be able to give free rein to
their ideas. Particularly odious were the insidious and blatant attempts at thought control during the time
of the Inquisition until even the Medieval universities, renowned as intellectual centers in Europe,
gradually lost their autonomy.
In time, such noble strivings, gathering libertarian encrustations along the way, were gradually
crystallized in the cluster of freedoms which awaited the champions and martyrs of the dawning modern
age. This was exemplified by the professors of the new German universities in the 16th and 17th
centuries such as the Universities of Leiden (1554), Helmstatdt (1574) and Heidelberg (1652). The
movement back to freedom of inquiry gained adherents among the exponents of fundamental human
rights of the 19th and 20th centuries. "Academic freedom", the term as it evolved to describe the
emerging rights related to intellectual liberty, has traditionally been associated with freedom of thought,
speech, expression and the press; in other words, with the right of individuals in university communities,
such as professors, researchers and administrators, to investigate, pursue, discuss and, in the immortal
words of Socrates, "to follow the argument wherever it may lead," free from internal and external
interference or pressure.
But obviously, its optimum impact is best realized where the freedom is exercised judiciously and does
not degenerate into unbridled license. Early cases on this individual aspect of academic freedom have
been stressed the need for assuring to such individuals a measure of independence through the
guarantees of autonomy and security of tenure. The components of this aspect of academic freedom
have been categorized under the areas of: (1) who may teach and (2) how to teach.
It is to be realized that this individual aspects of academic freedom could have developed only pari
passu with its institutional counterpart. As corporate entities, educational institutions of higher learning
are inherently endowed with the right to establish their policies, academic and otherwise, unhampered
by external controls or pressure. In the Frankfurter formulation, this is articulated in the areas of: (1) what
shall be taught, e.g., the curriculum and (2) who may be admitted to study.
In the Philippines, the Acts which are passed with the change of sovereignty from the Spanish to the
American government, namely, the Philippine Bill of 1902 and the Philippine Autonomy Act of 1916
made no mention of the rights now subsumed under the catch-all term of "academic freedom." This is
most especially true with respect to the institutional aspect of the term. It had to await the drafting of the
Philippine Constitutions to be recognized as deserving of legal protection.
The breakthrough for the concept itself was found in Section 5 of the 1935 Constitution which stated:
"Universities established by the State shall enjoy academic freedom." The only State University at that
time, being the University of the Philippines, the Charter was perceived by some as exhibiting rank
favoritism for the said institution at the expense of the rest.
In attempt to broaden the coverage of the provision, the 1973 Constitution provided in its Section 8(2):
"All institutions of higher learning shall enjoy academic freedom." In his interpretation of the provision,
66

former U.P. President Vicente G. Sinco, who was also a delegate to the 1971 Constitutional Convention,
declared that it "definitely grants the right of academic freedom to the University as an institution as
distinguished from the academic freedom of a university professor."
39

Has the right been carried over the to the present Constitution? In an attempt to give an explicit definition
with an expanded coverage, the Commissioners of the Constitutional Commission of the 1986 came up
with this formulation: "Academic freedom shall be enjoyed by students, by teachers, and by
researchers." After protracted debate and ringing speeches, the final version which was none too
different from the way it was couched in the previous two (2) Constitutions, as found in Article XIV,
Section 5(2) states: "Academic freedom shall be enjoyed in all institutions of higher learning." In
anticipation of the question as to whether and what aspects of academic freedom are included herein,
ConCom Commissioner Adolfo S. Azcuna explained: "Since academic freedom is a dynamic concept,
we want to expand the frontiers of freedom, especially in education, therefore, we shall leave it to the
courts to develop further the parameters of academic freedom."
40

More to the point, Commissioner Jose Luis Martin C. Gascon asked: "When we speak of the sentence
'academic freedom shall be enjoyed in all institutions of higher learning,' do we mean that academic
freedom shall be enjoyed by the institution itself?" Azcuna replied: "Not only that, it also includes . . . . "
Gascon finished off the broken thought, "the faculty and the students." Azcuna replied: "Yes."
Since Garcia v. Loyola School of Theology,
41
we have consistently upheld the salutary proposition that
admission to an institution of higher learning is discretionary upon a school, the same being a privilege
on the part of the student rather than a right. While under the education Act of 1982, students have a
right "to freely choose their field of study, subject to existing curricula and to continue their course therein
up to graduation," such right is subject, as all rights are, to the established academic and disciplinary
standards laid down by the academic institution.
42

"For private schools have the right to establish reasonable rules and regulations for the admission,
discipline and promotion of students. This . . . extends as well to parents . . . as parents are under a
social and moral (if not legal) obligation, individually and collectively, to assist and cooperate with the
schools."
43

Such rules are "incident to the very object of incorporation and indispensable to the successful
management of the college. The rules may include those governing student discipline."
44
Going a step
further, the establishment of rules governing university-student relations, particularly those pertaining to
student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the
institution, but to its very survival.
Within memory of the current generation is the eruption of militancy in the academic groves as
collectively, the students demanded and plucked for themselves from the ponoply of academic freedom
their own rights encapsulized under the rubric of "right to education" forgetting that, in Holfeldian terms,
they have a concomitant duty, and that is, their duty to learn under the rules laid down by the school.
Considering that respondent students are proud to claim as their own a Christian school that includes
Theology as part of its curriculum and assidously strives to turn out individuals of unimpeachable morals
and integrity in the mold of the founder of the order of the Society of Jesus, St. Ignatius of Loyola, and
their God-fearing forbears, their barbaric and ruthless acts are the more reprehensible. It must be borne
in mind that universities are established, not merely to develop the intellect and skills of the studentry,
but to inculcate lofty values, ideals and attitudes; nay, the development, or flowering if you will, of the
total man.
In essence, education must ultimately be religious not in the sense that the founders or charter
members of the institution are sectarian or profess a religious ideology. Rather, a religious education, as
the renowned philosopher Alfred North Whitehead said, is "an education which inculcates duty and
67

reverence."
45
It appears that the particular brand of religious education offered by the Ateneo de Manila
has been lost on the respondent students.
Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila University
as their own a minute longer, for they may foreseeably cast a malevolent influence on the students
currently enrolled, as well as those who come after them.
Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of Appeals that: "The
maintenance of a morally conducive and orderly educational environment will be seriously imperiled if,
under the circumstances of this case, Grace Christian is forced to admit petitioner's children and to
reintegrate them to the student body."
46
Thus, the decision of petitioner university to expel them is but
congruent with the gravity of their misdeeds. That there must be such a congruence between the offense
committed and the sanction imposed was stressed in Malabanan v. Ramento.
47

Having carefully reviewed the records and the procedure followed by petitioner university, we see no
reason to reverse its decision founded on the following undisputed facts: that on February 8, 9 and 10,
1991, the Aquila Legis Fraternity conducted hazing activities; that respondent students were present at
the hazing as auxiliaries, and that as a result of the hazing, Leonardo Villa died from serious physical
injuries, while Bienvenido Marquez was hospitalized. In light of the vicious acts of respondent students
upon those whom ironically they would claim as "brothers" after the initiation rites, how can we
countenance the imposition of such nominal penalties as reprimand or even suspension? We, therefore,
affirm petitioners' imposition of the penalty of dismissal upon respondent students. This finds authority
and justification in Section 146 of the Manual of Regulations for Private Schools.
48

WHEREFORE, the instant petition is GRANTED; the order of respondent Judge dated May 17, 1991
reinstating respondents students into petitioner university is hereby REVERSED. The resolution of
petitioner Joaquin Bernas S. J., then President of Ateneo de Manila University dated March 1991, is
REINSTATED and the decision of the Special Board DISMISSING respondent students ADEL ABAS
and ZOSIMO MENDOZA dated May 20, 1991 is hereby AFFIRMED.
Narvasa, C.J., Feliciano Padilla, Bidin, Regalado, Davide, Jr., Nocon, Bellosillo, Melo and Quiason, JJ.,
concur.
Grio-Aquino, J., is on leave.









68










Equal Protection of the Laws
People vs. Vera [G.R. No. 45685, November 16, 1937]
Ichong vs. Hernandez [G.R. No. L-7955, May31, 1957]
Villegas vs. Hui Chiong Tsai Pao Ho [G.R. No.L-29646, November 10, 1978]
Dumlao vs. COMELEC [G.R. No. L-52245,January 22, 1980]
Philippine Association of Service Exporters vs. Drilon [G.R. No. L-81958, June 30, 1988]
Himagan vs. People [G.R. No. 113811,October 7, 1994]
Quinto vs COMELEC [G.R. No. 189698, February 22, 2010]
Biraogo vs The Philippine Truth Commission [G.R. No 192935, December 7, 2010]
Almonte vs. Vasquez [G.R. No. 95367, May23, 1995]
Ormoc Sugar Co., Inc. vs. Treaser of OrmocCity [G.R. No. L-23794, February 17, 1968]






69

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45685 December 22, 1937
THE PEOPLE OF THE PHILIPPINES and THE HONGKONG & SHANGHAI BANKING
CORPORATION, petitioner,
vs.
JOSE O. VERA, Judge ad interim of First Instance of Manila, and MARIANO CU UNJIENG,
respondents.
Solicitor-General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong & Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orence and Belmonte, and Gibbs and McDonough for the
respondent Cu Unjieng.
No appearance for respondent Judge.
LAUREL, J .:
After rendition of the judgment of this court in the above-entitled case, the respondent Mariano Cu
Unjieng, on November 26, 1937, gave notice of his intention to petition the Supreme Court of the United
State for a writ of certiorari for the review of said judgment and, desiring to stay execution during the
pendency of the application for the writ and of the proceedings relative thereto in the Supreme Court of
the United State, now prays that the corresponding supersedeas bond be fixed, as provided by the rules
of this court. The People of the Philippines and the Hongkong and Shanghai Banking Corporation,
petitioners in the above-entitled case, oppose the application of the respondent for the granting of a
supersedeas bond.
The original action instituted in this court which resulted in the declaration of unconstitutionality of the
Probation Act (No. 4221 ) was for certiorari and prohibition. Respondent Mariano Cu Unjieng, thru
counsel, states that as certiorari and prohibition are civil remedies, it is mandatory upon this court to stay
enforcement of its judgment in the above-entitled case. (Sec. 46 [a] infra, Rules of the Supreme Court of
the Philippines.) He also calls attention to the principle that probation can not be granted after the
defendant has begun the service of his sentence and to the policy of this court to encourage review of its
decisions and judgments on certiorari by the Federal Supreme Court. In opposition, the petitioners state
that the judgment of this court declaring the Probation Act unconstitutional and void is self-executing;
that there is no judgment in the instant proceedings to be executed and that the supersedeas will serve
no useful purpose. The petitioner gave answer to the foregoing objections raised by the respondent and
reiterated the arguments advanced by him in support of his petition for the fixing of the bond.
Section 46 (a) of the rules of this court provides that:
Whenever it is made to appear by notice in writing that any party to a civil case in which final
judgment has been rendered by this court intends to petition the Supreme Court of the United
States for a writ of certiorari for the review of the decision and judgment of his court, and it
appears that the case is one which, by reason of the amount involved or the nature of the
questions of law presented, may be removed to the Supreme Court of the United States by writ
of certiorari, and it further appears that the party intending to make application for such writ
desires to stay the enforcement of the judgment of this court during the pendency of the
application for the writ of certiorari and of the proceeding in the Supreme Court of the United
States, it such is granted, this court shall grant a stay, for a term not to exceed ten days, within
70

which the moving party may give a supersedeas bond, and shall designate one of its members
to determine the sufficiency of such bond.
The foregoing rule requires that in any civil case in which final judgment has been rendered by this court,
if any party thereto gives notice in writing of his intention to remove the case to the Supreme Court of the
United States by writ of certiorari, this court shall grant a stay for the period therein mentioned within
which said party may give a supersedeas bond, the sufficiency of which is to be determined by one of
the members of this court. It is admitted that certiorari and prohibition are civil remedies but the certiorari
and prohibition proceedings originally instituted in this court were, like the proceedings for probation, an
incident of the criminal case. Apart from this, it will be noted that the appeal taken is from the judgment
of this court declaring the Probation Act unconstitutional and void. That judgment does not command or
permit any act to be done. There is nothing there to be actively enforced by execution or otherwise.
Because of its negative or prohibitive character, there is nothing to supersede; nothing, as petitioners
assert, upon which the stay bond can operate. In reality, the supersedeas is intended to operate on the
decision and judgment in the criminal case entitled "The People of the Philippines Islands vs. Mariano
Cu Unjieng et al." The decision of the Court of First Instance of Manila in that case, rendered on January
8, 1934 (Criminal Case No. 42649), was affirmed by this court on March 26, 1935 (G.R. No. 41200), 1.
The decision of this court in that criminal case has already become final and the petition for a writ of
certiorari to review said decision was denied by the Supreme Court of the United States in November of
last year. At bottom, supersedeas is being sought to stay the execution of the final judgment in said
criminal case. Thereby, the petitioner will continue to be at large and this is the status quo desired to be
maintained. We do not think that this should be allowed. (Sec. 46 [f], Rules of the Supreme Court of the
Philippines.) The suspensive effect of supersedeas can only operate in this case on the judgment sought
to be reviewed and cannot arrest the execution of the final judgment rendered in the criminal case
against the respondent Mariano Cu Unjieng. (Cyc. of Fed. Proc., Civil and Criminal, Longsdorf, vol. 6,
sec. 2869, p. 362.)
The public interest and the interest of the speedy administration of justice demand prompt execution of
the final sentence of conviction rendered against the petitioner. Said petitioner has had all the time and
opportunity which the law can possibly afford to anyone in self-defense. He had the assistance of able
counsel and opportunity to appeal to this court and the Supreme Court of the United States, and the
least that can be said is that he must abide by this judgment and serve his term. It is further to be
observed that the petition for probation of the respondent Mariano Cu Unjieng has already by the trial
court.
There is force in the argument that where the case is appealable under the Constitution and law to the
Supreme Court of the United States, this court is but an agent of that court and must permit the case to
take its due course. In such a case, the appeal is a matter of right. But from this premise it does not
follow that a stay must be granted by this court where nothing can be stayed, or that the final decision in
a criminal case which can no longer be appealed from should be superseded. Upon the other hand, the
wide latitude necessarily possessed by this court in the interpretation of its Rules must be exercised in
favor of what is believed to be a matter of public interest in the present case.
As a rule of federal practice in the United States, section 8 cd. of the Act of Congress of February 13,
1925 (43 Stat., 936, 940; 28 U.S.C.A., sec. 350), provides that in any case the execution and
enforcement of final judgment or degree which is subject to review by the Supreme Court of the United
States on writ of certiorari is discretionary with "a judge of the court rendering the judgment or decree or
by the Justice of the Supreme Court," and this rule is reiterated in paragraph 6 of Rule 38 of the
Supreme Court of the United States. (Robertson & Kirkham, sec. 413, p. 831 et seq.) In Magnum Import
Co. vs. De Spoturno Coty (262 U.S., 159,163; 43 S. Ct., 531; 67 Law. ed., 922), the Supreme Court of
the United States, though Chief Justice Taft, said:lawphil. net
The petition should, in the first instance, be made to the circuit court of appeals, which, with its
complete knowledge of the cases, may, with full consideration, promptly pass on it. That court is
in a position to judge, first, whether the case is one likely, under our practice, to be taken up by
71

us on certiorari; and, second, whether the balance of convenience requires a suspension of its
decree and a withholding of its mandate. It involves no disrespect to this court for the circuit court
of appeals to refuse to withhold its mandate or to suspend the operation f its judgment or decree
pending application for certiorari to us. If it thinks a question involved should be ruled upon by
this court, it may certify it. If it does not certify, it may still consider that the case is one in which a
certiorari may properly issue, and may, in its discretion, facilitate the application by witholding the
mandate or suspend in its decree. If it refuses, this court requires an extaordinary showing
before it will grant a stay of the decree below pending the application for a certiorari, and even
after it has granted a certiorari, it requires a clear case and decided balance of convenience
before it will grant such stay. These remarks, of course, apply also to applications for certiorari to
review judgments and decrees of the highest courts of states.
Petition for stay of execution and the fixing of a supersedeas bond is denied. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.


















72

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7995 May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and
partnerships adversely affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of
Manila, respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent
Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J .:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative
enactment, fundamental and far-reaching in significance. The enactment poses questions of due
process, police power and equal protection of the laws. It also poses an important issue of fact, that is
whether the conditions which the disputed law purports to remedy really or actually exist. Admittedly
springing from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen and
country from the alien retailer. Through it, and within the field of economy it regulates, Congress
attempts to translate national aspirations for economic independence and national security, rooted in the
drive and urge for national survival and welfare, into a concrete and tangible measures designed to free
the national retailer from the competing dominance of the alien, so that the country and the nation may
be free from a supposed economic dependence and bondage. Do the facts and circumstances justify
the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the
retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of
the Philippines, and against associations, partnerships, or corporations the capital of which are not
wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an
exception from the above prohibition in favor of aliens actually engaged in said business on May 15,
1954, who are allowed to continue to engaged therein, unless their licenses are forfeited in accordance
with the law, until their death or voluntary retirement in case of natural persons, and for ten years after
the approval of the Act or until the expiration of term in case of juridical persons; (3) an exception
therefrom in favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture of
licenses (to engage in the retail business) for violation of the laws on nationalization, control weights and
measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition against
the establishment or opening by aliens actually engaged in the retail business of additional stores or
branches of retail business, (6) a provision requiring aliens actually engaged in the retail business to
present for registration with the proper authorities a verified statement concerning their businesses,
73

giving, among other matters, the nature of the business, their assets and liabilities and their offices and
principal offices of judicial entities; and (7) a provision allowing the heirs of aliens now engaged in the
retail business who die, to continue such business for a period of six months for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships
adversely affected by the provisions of Republic Act. No. 1180, brought this action to obtain a judicial
declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other persons
acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner
attacks the constitutionality of the Act, contending that: (1) it denies to alien residents the equal
protection of the laws and deprives of their liberty and property without due process of law ; (2) the
subject of the Act is not expressed or comprehended in the title thereof; (3) the Act violates international
and treaty obligations of the Republic of the Philippines; (4) the provisions of the Act against the
transmission by aliens of their retail business thru hereditary succession, and those requiring 100%
Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate the
spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed
in the valid exercise of the police power of the State, which exercise is authorized in the Constitution in
the interest of national economic survival; (2) the Act has only one subject embraced in the title; (3) no
treaty or international obligations are infringed; (4) as regards hereditary succession, only the form is
affected but the value of the property is not impaired, and the institution of inheritance is only of statutory
origin.
IV. Preliminary consideration of legal principles involved
a. The police power.
There is no question that the Act was approved in the exercise of the police power, but petitioner claims
that its exercise in this instance is attended by a violation of the constitutional requirements of due
process and equal protection of the laws. But before proceeding to the consideration and resolution of
the ultimate issue involved, it would be well to bear in mind certain basic and fundamental, albeit
preliminary, considerations in the determination of the ever recurrent conflict between police power and
the guarantees of due process and equal protection of the laws. What is the scope of police power, and
how are the due process and equal protection clauses related to it? What is the province and power of
the legislature, and what is the function and duty of the courts? These consideration must be clearly and
correctly understood that their application to the facts of the case may be brought forth with clarity and
the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has become almost impossible to
limit its sweep. As it derives its existence from the very existence of the State itself, it does not need to
be expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and
as such it is the most positive and active of all governmental processes, the most essential, insistent and
illimitable. Especially is it so under a modern democratic framework where the demands of society and
of nations have multiplied to almost unimaginable proportions; the field and scope of police power has
become almost boundless, just as the fields of public interest and public welfare have become almost
all-embracing and have transcended human foresight. Otherwise stated, as we cannot foresee the
needs and demands of public interest and welfare in this constantly changing and progressive world, so
we cannot delimit beforehand the extent or scope of police power by which and through which the State
seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the scope or extent
of the police power of the State; what they do is to set forth the limitations thereof. The most important of
these are the due process clause and the equal protection clause.
74

b. Limitations on police power.
The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property without due
process of law, nor any person be denied the equal protection of the laws. (Article III,
Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application, without
regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause.
The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is
limited either in the object to which it is directed or by territory within which is to operate. It does not
demand absolute equality among residents; it merely requires that all persons shall be treated alike,
under like circumstances and conditions both as to privileges conferred and liabilities enforced. The
equal protection clause is not infringed by legislation which applies only to those persons falling within a
specified class, if it applies alike to all persons within such class, and reasonable grounds exists for
making a distinction between those who fall within such class and those who do not. (2 Cooley,
Constitutional Limitations, 824-825.)
d. The due process clause.
The due process clause has to do with the reasonableness of legislation enacted in pursuance of the
police power. Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably
necessary for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or
oppressive? Is there sufficient foundation or reason in connection with the matter involved; or has there
not been a capricious use of the legislative power? Can the aims conceived be achieved by the means
used, or is it not merely an unjustified interference with private interest? These are the questions that we
ask when the due process test is applied.
The conflict, therefore, between police power and the guarantees of due process and equal protection of
the laws is more apparent than real. Properly related, the power and the guarantees are supposed to
coexist. The balancing is the essence or, shall it be said, the indispensable means for the attainment of
legitimate aspirations of any democratic society. There can be no absolute power, whoever exercise it,
for that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and
anarchy. So the State can deprive persons of life, liberty and property, provided there is due process of
law; and persons may be classified into classes and groups, provided everyone is given the equal
protection of the law. The test or standard, as always, is reason. The police power legislation must be
firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes
and means. And if distinction and classification has been made, there must be a reasonable basis for
said distinction.
e. Legislative discretion not subject to judicial review.
Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be
overlooked, in the first place, that the legislature, which is the constitutional repository of police power
and exercises the prerogative of determining the policy of the State, is by force of circumstances
primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in
the exercise of the police power, or of the measures adopted to implement the public policy or to achieve
75

public interest. On the other hand, courts, although zealous guardians of individual liberty and right, have
nevertheless evinced a reluctance to interfere with the exercise of the legislative prerogative. They have
done so early where there has been a clear, patent or palpable arbitrary and unreasonable abuse of the
legislative prerogative. Moreover, courts are not supposed to override legitimate policy, and courts never
inquire into the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly into the issue involved. If
the disputed legislation were merely a regulation, as its title indicates, there would be no question that it
falls within the legitimate scope of legislative power. But it goes further and prohibits a group of
residents, the aliens, from engaging therein. The problem becomes more complex because its subject is
a common, trade or occupation, as old as society itself, which from the immemorial has always been
open to residents, irrespective of race, color or citizenship.
a. Importance of retail trade in the economy of the nation.
In a primitive economy where families produce all that they consume and consume all that they produce,
the dealer, of course, is unknown. But as group life develops and families begin to live in communities
producing more than what they consume and needing an infinite number of things they do not produce,
the dealer comes into existence. As villages develop into big communities and specialization in
production begins, the dealer's importance is enhanced. Under modern conditions and standards of
living, in which man's needs have multiplied and diversified to unlimited extents and proportions, the
retailer comes as essential as the producer, because thru him the infinite variety of articles, goods and
needed for daily life are placed within the easy reach of consumers. Retail dealers perform the functions
of capillaries in the human body, thru which all the needed food and supplies are ministered to members
of the communities comprising the nation.
There cannot be any question about the importance of the retailer in the life of the community. He
ministers to the resident's daily needs, food in all its increasing forms, and the various little gadgets and
things needed for home and daily life. He provides his customers around his store with the rice or corn,
the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell, even the
needle and the thread to sew them or darn the clothes that wear out. The retailer, therefore, from the
lowly peddler, the owner of a small sari-sari store, to the operator of a department store or, a
supermarket is so much a part of day-to-day existence.
b. The alien retailer's trait.
The alien retailer must have started plying his trades in this country in the bigger centers of population
(Time there was when he was unknown in provincial towns and villages). Slowly but gradually be
invaded towns and villages; now he predominates in the cities and big centers of population. He even
pioneers, in far away nooks where the beginnings of community life appear, ministering to the daily
needs of the residents and purchasing their agricultural produce for sale in the towns. It is an undeniable
fact that in many communities the alien has replaced the native retailer. He has shown in this trade,
industry without limit, and the patience and forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and
insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and
forgives. The community takes note of him, as he appears to be harmless and extremely useful.
c. Alleged alien control and dominance.
There is a general feeling on the part of the public, which appears to be true to fact, about the controlling
and dominant position that the alien retailer holds in the nation's economy. Food and other essentials,
76

clothing, almost all articles of daily life reach the residents mostly through him. In big cities and centers
of population he has acquired not only predominance, but apparent control over distribution of almost all
kinds of goods, such as lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of
other goods and articles. And were it not for some national corporations like the Naric, the Namarco, the
Facomas and the Acefa, his control over principal foods and products would easily become full and
complete.
Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said
that the fear is unfounded and the threat is imagined; in another, it is charged that the law is merely the
result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an element of
control; also so many unmanageable factors in the retail business make control virtually impossible. The
first argument which brings up an issue of fact merits serious consideration. The others are matters of
opinion within the exclusive competence of the legislature and beyond our prerogative to pass upon and
decide.
The best evidence are the statistics on the retail trade, which put down the figures in black and white.
Between the constitutional convention year (1935), when the fear of alien domination and control of the
retail trade already filled the minds of our leaders with fears and misgivings, and the year of the
enactment of the nationalization of the retail trade act (1954), official statistics unmistakably point out to
the ever-increasing dominance and control by the alien of the retail trade, as witness the following
tables:

Assets Gross Sales
Year and
Retailers
Nationality
No.-
Establishments
Pesos
Per cent
Distribution
Pesos
Per cent
Distribution
1941:


Filipino
..........
106,671 200,323,138 55.82 174,181,924 51.74

Chinese
...........
15,356 118,348,692 32.98 148,813,239 44.21

Others
............
1,646 40,187,090 11.20 13,630,239 4.05
1947:


Filipino
..........
111,107 208,658,946 65.05 279,583,333 57.03

Chinese
...........
13,774 106,156,218 33.56 205,701,134 41.96

Others
...........
354 8,761,260 .49 4,927,168 1.01
1948: (Census)


Filipino
..........
113,631 213,342,264 67.30 467,161,667 60.51

Chinese
..........
12,087 93,155,459 29.38 294,894,227 38.20

Others
..........
422 10,514,675 3.32 9,995,402 1.29
1949:


Filipino 113,659 213,451,602 60.89 462,532,901 53.47
77

..........

Chinese
..........
16,248 125,223,336 35.72 392,414,875 45.36

Others
..........
486 12,056,365 3.39 10,078,364 1.17
1951:


Filipino
.........
119,352 224,053,620 61.09 466,058,052 53.07

Chinese
..........
17,429 134,325,303 36.60 404,481,384 46.06

Others
..........
347 8,614,025 2.31 7,645,327 87

AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT
Year and Retailer's
Nationality
Item
Assets
(Pesos)
Gross
Sales
(Pesos)
1941:


Filipino ............................................. 1,878 1,633

Chinese
..............................................
7,707 9,691

Others
...............................................
24,415 8,281
1947:


Filipino ............................................. 1,878 2,516

Chinese ........................................... 7,707 14,934

Others .............................................. 24,749 13,919
1948: (Census)


Filipino ............................................. 1,878 4,111

Chinese
.............................................
7,707 24,398

Others .............................................. 24,916 23,686
1949:


Filipino ............................................. 1,878 4,069

Chinese 7,707 24,152
78

..............................................

Others .............................................. 24,807 20,737
1951:


Filipino ............................................. 1,877 3,905

Chinese
.............................................
7,707 33,207

Others
...............................................
24,824 22,033
(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross sales, alien participation
has steadily increased during the years. It is true, of course, that Filipinos have the edge in the number
of retailers, but aliens more than make up for the numerical gap through their assests and gross sales
which average between six and seven times those of the very many Filipino retailers. Numbers in
retailers, here, do not imply superiority; the alien invests more capital, buys and sells six to seven times
more, and gains much more. The same official report, pointing out to the known predominance of foreign
elements in the retail trade, remarks that the Filipino retailers were largely engaged in minor retailer
enterprises. As observed by respondents, the native investment is thinly spread, and the Filipino retailer
is practically helpless in matters of capital, credit, price and supply.
d. Alien control and threat, subject of apprehension in Constitutional convention.
It is this domination and control, which we believe has been sufficiently shown to exist, that is the
legislature's target in the enactment of the disputed nationalization would never have been adopted. The
framers of our Constitution also believed in the existence of this alien dominance and control when they
approved a resolution categorically declaring among other things, that "it is the sense of the Convention
that the public interest requires the nationalization of the retail trade; . . . ." (II Aruego, The Framing of
the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago;
and the events since then have not been either pleasant or comforting. Dean Sinco of the University of
the Philippines College of Law, commenting on the patrimony clause of the Preamble opines that the
fathers of our Constitution were merely translating the general preoccupation of Filipinos "of the dangers
from alien interests that had already brought under their control the commercial and other economic
activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the
members of the constitutional convention for the economic life of the citizens, in connection with the
nationalistic provisions of the Constitution, he says:
But there has been a general feeling that alien dominance over the economic life of the
country is not desirable and that if such a situation should remain, political independence
alone is no guarantee to national stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the national economy. Moreover, it is but
of recent formation and hence, largely inexperienced, timid and hesitant. Under such
conditions, the government as the instrumentality of the national will, has to step in and
assume the initiative, if not the leadership, in the struggle for the economic freedom of
the nation in somewhat the same way that it did in the crusade for political freedom. Thus
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. . . it (the Constitution) envisages an organized movement for the protection of the nation
not only against the possibilities of armed invasion but also against its economic
subjugation by alien interests in the economic field. (Phil. Political Law by Sinco, 10th
ed., p. 476.)
Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen,
manufacturers and producers believe so; they fear the dangers coming from alien control, and they
express sentiments of economic independence. Witness thereto is Resolution No. 1, approved on July
18, 1953, of the Fifth National convention of Filipino Businessmen, and a similar resolution, approved on
March 20, 1954, of the Second National Convention of Manufacturers and Producers. The man in the
street also believes, and fears, alien predominance and control; so our newspapers, which have
editorially pointed out not only to control but to alien stranglehold. We, therefore, find alien domination
and control to be a fact, a reality proved by official statistics, and felt by all the sections and groups that
compose the Filipino community.
e. Dangers of alien control and dominance in retail.
But the dangers arising from alien participation in the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action and thorough organization, alien
retailers and merchants can act in such complete unison and concert on such vital matters as the fixing
of prices, the determination of the amount of goods or articles to be made available in the market, and
even the choice of the goods or articles they would or would not patronize or distribute, that fears of
dislocation of the national economy and of the complete subservience of national economy and of the
consuming public are not entirely unfounded. Nationals, producers and consumers alike can be placed
completely at their mercy. This is easily illustrated. Suppose an article of daily use is desired to be
prescribed by the aliens, because the producer or importer does not offer them sufficient profits, or
because a new competing article offers bigger profits for its introduction. All that aliens would do is to
agree to refuse to sell the first article, eliminating it from their stocks, offering the new one as a
substitute. Hence, the producers or importers of the prescribed article, or its consumers, find the article
suddenly out of the prescribed article, or its consumers, find the article suddenly out of circulation.
Freedom of trade is thus curtailed and free enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of alien
domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within
judicial notice, which courts of justice may not properly overlook or ignore in the interests of truth and
justice, that there exists a general feeling on the part of the public that alien participation in the retail
trade has been attended by a pernicious and intolerable practices, the mention of a few of which would
suffice for our purposes; that at some time or other they have cornered the market of essential
commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods to the inconvenience and prejudice of
the consuming public, so much so that the Government has had to establish the National Rice and Corn
Corporation to save the public from their continuous hoarding practices and tendencies; that they have
violated price control laws, especially on foods and essential commodities, such that the legislature had
to enact a law (Sec. 9, Republic Act No. 1168), authorizing their immediate and automatic deportation
for price control convictions; that they have secret combinations among themselves to control prices,
cheating the operation of the law of supply and demand; that they have connived to boycott honest
merchants and traders who would not cater or yield to their demands, in unlawful restraint of freedom of
trade and enterprise. They are believed by the public to have evaded tax laws, smuggled goods and
money into and out of the land, violated import and export prohibitions, control laws and the like, in
derision and contempt of lawful authority. It is also believed that they have engaged in corrupting public
officials with fabulous bribes, indirectly causing the prevalence of graft and corruption in the
Government. As a matter of fact appeals to unscrupulous aliens have been made both by the
Government and by their own lawful diplomatic representatives, action which impliedly admits a
prevailing feeling about the existence of many of the above practices.
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The circumstances above set forth create well founded fears that worse things may come in the future.
The present dominance of the alien retailer, especially in the big centers of population, therefore,
becomes a potential source of danger on occasions of war or other calamity. We do not have here in this
country isolated groups of harmless aliens retailing goods among nationals; what we have are well
organized and powerful groups that dominate the distribution of goods and commodities in the
communities and big centers of population. They owe no allegiance or loyalty to the State, and the State
cannot rely upon them in times of crisis or emergency. While the national holds his life, his person and
his property subject to the needs of his country, the alien may even become the potential enemy of the
State.
f. Law enacted in interest of national economic survival and security.
We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not
the product of racial hostility, prejudice or discrimination, but the expression of the legitimate desire and
determination of the people, thru their authorized representatives, to free the nation from the economic
situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The law is
clearly in the interest of the public, nay of the national security itself, and indisputably falls within the
scope of police power, thru which and by which the State insures its existence and security and the
supreme welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. The next question that now poses solution is, Does
the law deny the equal protection of the laws? As pointed out above, the mere fact of alienage is the root
and cause of the distinction between the alien and the national as a trader. The alien resident owes
allegiance to the country of his birth or his adopted country; his stay here is for personal convenience; he
is attracted by the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate nor
immoral, but he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he
temporarily stays and makes his living, or of that spirit of regard, sympathy and consideration for his
Filipino customers as would prevent him from taking advantage of their weakness and exploiting them.
The faster he makes his pile, the earlier can the alien go back to his beloved country and his beloved kin
and countrymen. The experience of the country is that the alien retailer has shown such utter disregard
for his customers and the people on whom he makes his profit, that it has been found necessary to
adopt the legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he never really makes a genuine contribution
to national income and wealth. He undoubtedly contributes to general distribution, but the gains and
profits he makes are not invested in industries that would help the country's economy and increase
national wealth. The alien's interest in this country being merely transient and temporary, it would indeed
be ill-advised to continue entrusting the very important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out above, their
secret manipulations of stocks of commodities and prices, their utter disregard of the welfare of their
customers and of the ultimate happiness of the people of the nation of which they are mere guests,
which practices, manipulations and disregard do not attend the exercise of the trade by the nationals,
show the existence of real and actual, positive and fundamental differences between an alien and a
national which fully justify the legislative classification adopted in the retail trade measure. These
differences are certainly a valid reason for the State to prefer the national over the alien in the retail
trade. We would be doing violence to fact and reality were we to hold that no reason or ground for a
legitimate distinction can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction.
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The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual
and real, furnish sufficient grounds for legislative classification of retail traders into nationals and aliens.
Some may disagree with the wisdom of the legislature's classification. To this we answer, that this is the
prerogative of the law-making power. Since the Court finds that the classification is actual, real and
reasonable, and all persons of one class are treated alike, and as it cannot be said that the classification
is patently unreasonable and unfounded, it is in duty bound to declare that the legislature acted within its
legitimate prerogative and it can not declare that the act transcends the limit of equal protection
established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications among persons is
not curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide
scope of discretion, and a law can be violative of the constitutional limitation only when the classification
is without reasonable basis. In addition to the authorities we have earlier cited, we can also refer to the
case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined
the application of equal protection clause to a law sought to be voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from
the state the power to classify in the adoption of police laws, but admits of the exercise of
the wide scope of discretion in that regard, and avoids what is done only when it is
without any reasonable basis, and therefore is purely arbitrary. 2. A classification having
some reasonable basis does not offend against that clause merely because it is not
made with mathematical nicety, or because in practice it results in some inequality. 3.
When the classification in such a law is called in question, if any state of facts reasonably
can be conceived that would sustain it, the existence of that state of facts at the time the
law was enacted must be assumed. 4. One who assails the classification in such a law
must carry the burden of showing that it does not rest upon any reasonable basis but is
essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification.
The question as to whether or not citizenship is a legal and valid ground for classification has already
been affirmatively decided in this jurisdiction as well as in various courts in the United States. In the case
of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine
Legislature was in issue, because of a condition therein limiting the ownership of vessels engaged in
coastwise trade to corporations formed by citizens of the Philippine Islands or the United States, thus
denying the right to aliens, it was held that the Philippine Legislature did not violate the equal protection
clause of the Philippine Bill of Rights. The legislature in enacting the law had as ultimate purpose the
encouragement of Philippine shipbuilding and the safety for these Islands from foreign interlopers. We
held that this was a valid exercise of the police power, and all presumptions are in favor of its
constitutionality. In substance, we held that the limitation of domestic ownership of vessels engaged in
coastwise trade to citizens of the Philippines does not violate the equal protection of the law and due
process or law clauses of the Philippine Bill of Rights. In rendering said decision we quoted with
approval the concurring opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as
follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example,
acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance,
is distinctly of that character, and forms part of an extensive system, the object of which
is to encourage American shipping, and place them on an equal footing with the shipping
of other nations. Almost every commercial nation reserves to its own subjects a
monopoly of its coasting trade; and a countervailing privilege in favor of American
shipping is contemplated, in the whole legislation of the United States on this subject. It
is not to give the vessel an American character, that the license is granted; that effect
has been correctly attributed to the act of her enrollment. But it is to confer on her
American privileges, as contra distinguished from foreign; and to preserve the
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Government from fraud by foreigners; in surreptitiously intruding themselves into the
American commercial marine, as well as frauds upon the revenue in the trade coastwise,
that this whole system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a classification
otherwise justified simply because the limitation of the class falls along the lines of
nationality. That would be requiring a higher degree of protection for aliens as a class
than for similar classes than for similar classes of American citizens. Broadly speaking,
the difference in status between citizens and aliens constitutes a basis for reasonable
classification in the exercise of police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers
and peddlers, which provided that no one can obtain a license unless he is, or has declared his
intention, to become a citizen of the United States, was held valid, for the following reason: It may seem
wise to the legislature to limit the business of those who are supposed to have regard for the welfare,
good order and happiness of the community, and the court cannot question this judgment and
conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain
persons, among them aliens, from engaging in the traffic of liquors, was found not to be the result of
race hatred, or in hospitality, or a deliberate purpose to discriminate, but was based on the belief that an
alien cannot be sufficiently acquainted with "our institutions and our life as to enable him to appreciate
the relation of this particular business to our entire social fabric", and was not, therefore, invalid. In Ohio
ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under
consideration an ordinance of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard
rooms) to aliens. It held that plainly irrational discrimination against aliens is prohibited, but it does not
follow that alien race and allegiance may not bear in some instances such a relation to a legitimate
object of legislation as to be made the basis of permitted classification, and that it could not state that the
legislation is clearly wrong; and that latitude must be allowed for the legislative appraisement of local
conditions and for the legislative choice of methods for controlling an apprehended evil. The case of
State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City of
Seattle, 210 P. 30 (Washington, 1922), the business of pawn brooking was considered as having
tendencies injuring public interest, and limiting it to citizens is within the scope of police power. A similar
statute denying aliens the right to engage in auctioneering was also sustained in Wright vs. May, L.R.A.,
1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court
said that aliens are judicially known to have different interests, knowledge, attitude, psychology and
loyalty, hence the prohibitions of issuance of licenses to them for the business of pawnbroker, pool,
billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar vs. Michigan
State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as
barbers was held void, but the reason for the decision was the court's findings that the exercise of the
business by the aliens does not in any way affect the morals, the health, or even the convenience of the
community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947), a California statute
banning the issuance of commercial fishing licenses to person ineligible to citizenship was held void,
because the law conflicts with Federal power over immigration, and because there is no public interest in
the mere claim of ownership of the waters and the fish in them, so there was no adequate justification for
the discrimination. It further added that the law was the outgrowth of antagonism toward the persons of
Japanese ancestry. However, two Justices dissented on the theory that fishing rights have been treated
traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania,
1897), a state law which imposed a tax on every employer of foreign-born unnaturalized male persons
over 21 years of age, was declared void because the court found that there was no reason for the
classification and the tax was an arbitrary deduction from the daily wage of an employee.
d. Authorities contra explained.
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It is true that some decisions of the Federal court and of the State courts in the United States hold that
the distinction between aliens and citizens is not a valid ground for classification. But in this decision the
laws declared invalid were found to be either arbitrary, unreasonable or capricious, or were the result or
product of racial antagonism and hostility, and there was no question of public interest involved or
pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared
invalid a Philippine law making unlawful the keeping of books of account in any language other than
English, Spanish or any other local dialect, but the main reasons for the decisions are: (1) that if Chinese
were driven out of business there would be no other system of distribution, and (2) that the Chinese
would fall prey to all kinds of fraud, because they would be deprived of their right to be advised of their
business and to direct its conduct. The real reason for the decision, therefore, is the court's belief that no
public benefit would be derived from the operations of the law and on the other hand it would deprive
Chinese of something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220
(1885) an ordinance conferring powers on officials to withhold consent in the operation of laundries both
as to persons and place, was declared invalid, but the court said that the power granted was arbitrary,
that there was no reason for the discrimination which attended the administration and implementation of
the law, and that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165
(Maine, 1900), a law prohibiting aliens to engage as hawkers and peddlers was declared void, because
the discrimination bore no reasonable and just relation to the act in respect to which the classification
was proposed.
The case at bar is radically different, and the facts make them so. As we already have said, aliens do not
naturally possess the sympathetic consideration and regard for the customers with whom they come in
daily contact, nor the patriotic desire to help bolster the nation's economy, except in so far as it
enhances their profit, nor the loyalty and allegiance which the national owes to the land. These
limitations on the qualifications of the aliens have been shown on many occasions and instances,
especially in times of crisis and emergency. We can do no better than borrow the language of Anton vs.
Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the distinction between the
alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into this country are without
the intimate knowledge of our laws, customs, and usages that our own people have. So it
is likewise known that certain classes of aliens are of different psychology from our fellow
countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born,
whose allegiance is first to their own country, and whose ideals of governmental
environment and control have been engendered and formed under entirely different
regimes and political systems, have not the same inspiration for the public weal, nor are
they as well disposed toward the United States, as those who by citizenship, are a part of
the government itself. Further enlargement, is unnecessary. I have said enough so that
obviously it cannot be affirmed with absolute confidence that the Legislature was without
plausible reason for making the classification, and therefore appropriate discriminations
against aliens as it relates to the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive.
We now come to due process as a limitation on the exercise of the police power. It has been stated by
the highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands only that the
law shall not be unreasonable, arbitrary or capricious, and that the means selected shall
have a real and substantial relation to the subject sought to be attained. . . . .
x x x x x x x x x
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So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may
reasonably be deemed to promote public welfare, and to enforce that policy by legislation
adapted to its purpose. The courts are without authority either to declare such policy, or,
when it is declared by the legislature, to override it. If the laws passed are seen to have a
reasonable relation to a proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied, and judicial determination
to that effect renders a court functus officio. . . . (Nebbia vs. New York, 78 L. ed. 940,
950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in considering the
scope of the police power in a constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to inquire whether the
restriction it imposes on rights secured to individuals by the Bill of Rights are
unreasonable, and not whether it imposes any restrictions on such rights. . . .
x x x x x x x x x
. . . . A statute to be within this power must also be reasonable in its operation upon the
persons whom it affects, must not be for the annoyance of a particular class, and must
not be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the public, it must
appear, first, that the interests of the public generally, as distinguished from those of a
particular class, require such interference; and second, that the means are reasonably
necessary for the accomplishment of the purpose, and not unduly oppressive upon
individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:
In determining whether a given act of the Legislature, passed in the exercise of the police
power to regulate the operation of a business, is or is not constitutional, one of the first
questions to be considered by the court is whether the power as exercised has a
sufficient foundation in reason in connection with the matter involved, or is an arbitrary,
oppressive, and capricious use of that power, without substantial relation to the health,
safety, morals, comfort, and general welfare of the public.
b. Petitioner's argument considered.
Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long
ago recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful and
honest occupation and therefore beyond the power of the legislature to prohibit and penalized. This
arguments overlooks fact and reality and rests on an incorrect assumption and premise, i.e., that in this
country where the occupation is engaged in by petitioner, it has been so engaged by him, by the alien in
an honest creditable and unimpeachable manner, without harm or injury to the citizens and without
ultimate danger to their economic peace, tranquility and welfare. But the Legislature has found, as we
have also found and indicated, that the privilege has been so grossly abused by the alien, thru the
illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control of the
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occupation and threatens a deadly stranglehold on the nation's economy endangering the national
security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the
facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade
unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and manner
in which the aliens have heretofore engaged therein? As thus correctly stated the answer is clear. The
law in question is deemed absolutely necessary to bring about the desired legislative objective, i.e., to
free national economy from alien control and dominance. It is not necessarily unreasonable because it
affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is
the appropriateness or adequacy under all circumstances of the means adopted to carry out its purpose
into effect (Id.) Judged by this test, disputed legislation, which is not merely reasonable but actually
necessary, must be considered not to have infringed the constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied the bill, which
later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to prevent persons who
are not citizens of the Philippines from having a strangle hold upon our economic life. If
the persons who control this vital artery of our economic life are the ones who owe no
allegiance to this Republic, who have no profound devotion to our free institutions, and
who have no permanent stake in our people's welfare, we are not really the masters of
our destiny. All aspects of our life, even our national security, will be at the mercy of other
people.
In seeking to accomplish the foregoing purpose, we do not propose to deprive persons
who are not citizens of the Philippines of their means of livelihood. While this bill seeks to
take away from the hands of persons who are not citizens of the Philippines a power that
can be wielded to paralyze all aspects of our national life and endanger our national
security it respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic independence is none the
less legitimate. Freedom and liberty are not real and positive if the people are subject to the economic
control and domination of others, especially if not of their own race or country. The removal and
eradication of the shackles of foreign economic control and domination, is one of the noblest motives
that a national legislature may pursue. It is impossible to conceive that legislation that seeks to bring it
about can infringe the constitutional limitation of due process. The attainment of a legitimate aspiration of
a people can never be beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.
The framers of the Constitution could not have intended to impose the constitutional restrictions of due
process on the attainment of such a noble motive as freedom from economic control and domination,
thru the exercise of the police power. The fathers of the Constitution must have given to the legislature
full authority and power to enact legislation that would promote the supreme happiness of the people,
their freedom and liberty. On the precise issue now before us, they expressly made their voice clear;
they adopted a resolution expressing their belief that the legislation in question is within the scope of the
legislative power. Thus they declared the their Resolution:
That it is the sense of the Convention that the public interest requires the nationalization
of retail trade; but it abstain from approving the amendment introduced by the Delegate
for Manila, Mr. Araneta, and others on this matter because it is convinced that the
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National Assembly is authorized to promulgate a law which limits to Filipino and
American citizens the privilege to engage in the retail trade. (11 Aruego, The Framing of
the Philippine Constitution, quoted on pages 66 and 67 of the Memorandum for the
Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution.
Thus in the preamble, a principle objective is the conservation of the patrimony of the nation and as
corollary the provision limiting to citizens of the Philippines the exploitation, development and utilization
of its natural resources. And in Section 8 of Article XIV, it is provided that "no franchise, certificate, or
any other form of authorization for the operation of the public utility shall be granted except to citizens of
the Philippines." The nationalization of the retail trade is only a continuance of the nationalistic protective
policy laid down as a primary objective of the Constitution. Can it be said that a law imbued with the
same purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid
and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval
of the radical measures is, therefore, fully justified. It would have been recreant to its duties towards the
country and its people would it view the sorry plight of the nationals with the complacency and refuse or
neglect to adopt a remedy commensurate with the demands of public interest and national survival. As
the repository of the sovereign power of legislation, the Legislature was in duty bound to face the
problem and meet, through adequate measures, the danger and threat that alien domination of retail
trade poses to national economy.
d. Provisions of law not unreasonable.
A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those
already engaged in the occupation to continue therein during the rest of their lives; and similar
recognition of the right to continue is accorded associations of aliens. The right or privilege is denied to
those only upon conviction of certain offenses. In the deliberations of the Court on this case, attention
was called to the fact that the privilege should not have been denied to children and heirs of aliens now
engaged in the retail trade. Such provision would defeat the law itself, its aims and purposes. Beside,
the exercise of legislative discretion is not subject to judicial review. It is well settled that the Court will
not inquire into the motives of the Legislature, nor pass upon general matters of legislative judgment.
The Legislature is primarily the judge of the necessity of an enactment or of any of its provisions, and
every presumption is in favor of its validity, and though the Court may hold views inconsistent with the
wisdom of the law, it may not annul the legislation if not palpably in excess of the legislative power.
Furthermore, the test of the validity of a law attacked as a violation of due process, is not its
reasonableness, but its unreasonableness, and we find the provisions are not unreasonable. These
principles also answer various other arguments raised against the law, some of which are: that the law
does not promote general welfare; that thousands of aliens would be thrown out of employment; that
prices will increase because of the elimination of competition; that there is no need for the legislation;
that adequate replacement is problematical; that there may be general breakdown; that there would be
repercussions from foreigners; etc. Many of these arguments are directed against the supposed wisdom
of the law which lies solely within the legislative prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is
misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail
business and prohibit aliens from engaging therein. The constitutional provision which is claimed to be
violated in Section 21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than one subject which shall
be expressed in the title of the bill.
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What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the
legislators or the public of the nature, scope and consequences of the law or its operation (I Sutherland,
Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the provisions of the
bill fails to show the presence of duplicity. It is true that the term "regulate" does not and may not readily
and at first glance convey the idea of "nationalization" and "prohibition", which terms express the two
main purposes and objectives of the law. But "regulate" is a broader term than either prohibition or
nationalization. Both of these have always been included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may
prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in
page 41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every act of the
Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors,
etc." sufficiently expresses the subject of an act prohibiting the sale of such liquors to
minors and to persons in the habit of getting intoxicated; such matters being properly
included within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308,
quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of restraint
and prohibition of acts usually done in connection with the thing to be regulated. While
word regulate does not ordinarily convey meaning of prohibit, there is no absolute reason
why it should not have such meaning when used in delegating police power in
connection with a thing the best or only efficacious regulation of which involves
suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said that the title
need not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See. 4803,
p. 345.) The above rule was followed the title of the Act in question adopted the more general term
"regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules for the
regulation of the retail trade which may not be included in the terms "nationalization" or "prohibition"; so
were the title changed from "regulate" to "nationalize" or "prohibit", there would have been many
provisions not falling within the scope of the title which would have made the Act invalid. The use of the
term "regulate", therefore, is in accord with the principle governing the drafting of statutes, under which a
simple or general term should be adopted in the title, which would include all other provisions found in
the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to
apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have received the notice, action and study of the legislators or of
the public. In the case at bar it cannot be claimed that the legislators have been appraised of the nature
of the law, especially the nationalization and the prohibition provisions. The legislators took active
interest in the discussion of the law, and a great many of the persons affected by the prohibitions in the
law conducted a campaign against its approval. It cannot be claimed, therefore, that the reasons for
declaring the law invalid ever existed. The objection must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation thereby of the
Charter of the United Nations and of the Declaration of the Human Rights adopted by the United Nations
General Assembly. We find no merit in the Nations Charter imposes no strict or legal obligations
regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951
ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere
recommendation or a common standard of achievement for all peoples and all nations (Id. p. 39.) That
such is the import of the United Nations Charter aid of the Declaration of Human Rights can be inferred
88

the fact that members of the United Nations Organizations, such as Norway and Denmark, prohibit
foreigners from engaging in retail trade, and in most nations of the world laws against foreigners
engaged in domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947
is also claimed to be violated by the law in question. All that the treaty guarantees is equality of
treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But the
nationals of China are not discriminating against because nationals of all other countries, except those of
the United States, who are granted special rights by the Constitution, are all prohibited from engaging in
the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always
subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260),
and the same may never curtail or restrict the scope of the police power of the State (plaston vs.
Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real
actual threat and danger to national economy posed by alien dominance and control of the retail
business and free citizens and country from dominance and control; that the enactment clearly falls
within the scope of the police power of the State, thru which and by which it protects its own personality
and insures its security and future; that the law does not violate the equal protection clause of the
Constitution because sufficient grounds exist for the distinction between alien and citizen in the exercise
of the occupation regulated, nor the due process of law clause, because the law is prospective in
operation and recognizes the privilege of aliens already engaged in the occupation and reasonably
protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear to us to
be plainly evident as a matter of fact it seems not only appropriate but actually necessary and that
in any case such matter falls within the prerogative of the Legislature, with whose power and discretion
the Judicial department of the Government may not interfere; that the provisions of the law are clearly
embraced in the title, and this suffers from no duplicity and has not misled the legislators or the segment
of the population affected; and that it cannot be said to be void for supposed conflict with treaty
obligations because no treaty has actually been entered into on the subject and the police power may
not be curtailed or surrendered by any treaty or any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law could have been made
less harsh in its impact on the aliens. Thus it is stated that the more time should have been given in the
law for the liquidation of existing businesses when the time comes for them to close. Our legal duty,
however, is merely to determine if the law falls within the scope of legislative authority and does not
transcend the limitations of due process and equal protection guaranteed in the Constitution. Remedies
against the harshness of the law should be addressed to the Legislature; they are beyond our power and
jurisdiction.
The petition is hereby denied, with costs against petitioner.
Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ.,
concur.




89

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-29646 November 10, 1978
MAYOR ANTONIO J. VILLEGAS, petitioner,
vs.
HIU CHIONG TSAI PAO HO and JUDGE FRANCISCO ARCA, respondents.
Angel C. Cruz, Gregorio A. Ejercito, Felix C. Chaves & Jose Laureta for petitioner.
Sotero H. Laurel for respondents.
FERNANDEZ, J .:
This is a petition for certiorari to review tile decision dated September 17, 1968 of respondent Judge
Francisco Arca of the Court of First Instance of Manila, Branch I, in Civil Case No. 72797, the dispositive
portion of winch reads.
Wherefore, judgment is hereby rendered in favor of the petitioner and against the
respondents, declaring Ordinance No. 6 37 of the City of Manila null and void. The
preliminary injunction is made permanent. No pronouncement as to cost.
SO ORDERED.
Manila, Philippines, September 17, 1968.
(SGD.)
FRANCISCO
ARCAJudge
1

The controverted Ordinance No. 6537 was passed by the Municipal Board of Manila on February 22,
1968 and signed by the herein petitioner Mayor Antonio J. Villegas of Manila on March 27, 1968.
2

City Ordinance No. 6537 is entitled:
AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON NOT A CITIZEN OF
THE PHILIPPINES TO BE EMPLOYED IN ANY PLACE OF EMPLOYMENT OR TO BE
ENGAGED IN ANY KIND OF TRADE, BUSINESS OR OCCUPATION WITHIN THE
CITY OF MANILA WITHOUT FIRST SECURING AN EMPLOYMENT PERMIT FROM
THE MAYOR OF MANILA; AND FOR OTHER PURPOSES.
3

Section 1 of said Ordinance No. 6537
4
prohibits aliens from being employed or to engage or participate
in any position or occupation or business enumerated therein, whether permanent, temporary or casual,
without first securing an employment permit from the Mayor of Manila and paying the permit fee of
P50.00 except persons employed in the diplomatic or consular missions of foreign countries, or in the
technical assistance programs of both the Philippine Government and any foreign government, and
those working in their respective households, and members of religious orders or congregations, sect or
denomination, who are not paid monetarily or in kind.
90

Violations of this ordinance is punishable by an imprisonment of not less than three (3) months to six (6)
months or fine of not less than P100.00 but not more than P200.00 or both such fine and imprisonment,
upon conviction.
5

On May 4, 1968, private respondent Hiu Chiong Tsai Pao Ho who was employed in Manila, filed a
petition with the Court of First Instance of Manila, Branch I, denominated as Civil Case No. 72797,
praying for the issuance of the writ of preliminary injunction and restraining order to stop the
enforcement of Ordinance No. 6537 as well as for a judgment declaring said Ordinance No. 6537 null
and void.
6

In this petition, Hiu Chiong Tsai Pao Ho assigned the following as his grounds for wanting the ordinance
declared null and void:
1) As a revenue measure imposed on aliens employed in the City of Manila, Ordinance
No. 6537 is discriminatory and violative of the rule of the uniformity in taxation;
2) As a police power measure, it makes no distinction between useful and non-useful
occupations, imposing a fixed P50.00 employment permit, which is out of proportion to
the cost of registration and that it fails to prescribe any standard to guide and/or limit the
action of the Mayor, thus, violating the fundamental principle on illegal delegation of
legislative powers:
3) It is arbitrary, oppressive and unreasonable, being applied only to aliens who are thus,
deprived of their rights to life, liberty and property and therefore, violates the due process
and equal protection clauses of the Constitution.
7

On May 24, 1968, respondent Judge issued the writ of preliminary injunction and on September 17,
1968 rendered judgment declaring Ordinance No. 6537 null and void and making permanent the writ of
preliminary injunction.
8

Contesting the aforecited decision of respondent Judge, then Mayor Antonio J. Villegas filed the present
petition on March 27, 1969. Petitioner assigned the following as errors allegedly committed by
respondent Judge in the latter's decision of September 17,1968:
9

I
THE RESPONDENT JUDGE COMMITTED A SERIOUS AND PATENT ERROR OF
LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE CARDINAL RULE OF
UNIFORMITY OF TAXATION.
II
RESPONDENT JUDGE LIKEWISE COMMITTED A GRAVE AND PATENT ERROR OF
LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE PRINCIPLE AGAINST
UNDUE DESIGNATION OF LEGISLATIVE POWER.
III
RESPONDENT JUDGE FURTHER COMMITTED A SERIOUS AND PATENT ERROR
OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE DUE PROCESS
AND EQUAL PROTECTION CLAUSES OF THE CONSTITUTION.
91

Petitioner Mayor Villegas argues that Ordinance No. 6537 cannot be declared null and void on the
ground that it violated the rule on uniformity of taxation because the rule on uniformity of taxation applies
only to purely tax or revenue measures and that Ordinance No. 6537 is not a tax or revenue measure
but is an exercise of the police power of the state, it being principally a regulatory measure in nature.
The contention that Ordinance No. 6537 is not a purely tax or revenue measure because its principal
purpose is regulatory in nature has no merit. While it is true that the first part which requires that the
alien shall secure an employment permit from the Mayor involves the exercise of discretion and
judgment in the processing and approval or disapproval of applications for employment permits and
therefore is regulatory in character the second part which requires the payment of P50.00 as employee's
fee is not regulatory but a revenue measure. There is no logic or justification in exacting P50.00 from
aliens who have been cleared for employment. It is obvious that the purpose of the ordinance is to raise
money under the guise of regulation.
The P50.00 fee is unreasonable not only because it is excessive but because it fails to consider valid
substantial differences in situation among individual aliens who are required to pay it. Although the equal
protection clause of the Constitution does not forbid classification, it is imperative that the classification
should be based on real and substantial differences having a reasonable relation to the subject of the
particular legislation. The same amount of P50.00 is being collected from every employed alien whether
he is casual or permanent, part time or full time or whether he is a lowly employee or a highly paid
executive
Ordinance No. 6537 does not lay down any criterion or standard to guide the Mayor in the exercise of
his discretion. It has been held that where an ordinance of a municipality fails to state any policy or to set
up any standard to guide or limit the mayor's action, expresses no purpose to be attained by requiring a
permit, enumerates no conditions for its grant or refusal, and entirely lacks standard, thus conferring
upon the Mayor arbitrary and unrestricted power to grant or deny the issuance of building permits, such
ordinance is invalid, being an undefined and unlimited delegation of power to allow or prevent an activity
per se lawful.
10

In Chinese Flour Importers Association vs. Price Stabilization Board,
11
where a law granted a
government agency power to determine the allocation of wheat flour among importers, the Supreme
Court ruled against the interpretation of uncontrolled power as it vested in the administrative officer an
arbitrary discretion to be exercised without a policy, rule, or standard from which it can be measured or
controlled.
It was also held in Primicias vs. Fugoso
12
that the authority and discretion to grant and refuse permits of
all classes conferred upon the Mayor of Manila by the Revised Charter of Manila is not uncontrolled
discretion but legal discretion to be exercised within the limits of the law.
Ordinance No. 6537 is void because it does not contain or suggest any standard or criterion to guide the
mayor in the exercise of the power which has been granted to him by the ordinance.
The ordinance in question violates the due process of law and equal protection rule of the Constitution.
Requiring a person before he can be employed to get a permit from the City Mayor of Manila who may
withhold or refuse it at will is tantamount to denying him the basic right of the people in the Philippines to
engage in a means of livelihood. While it is true that the Philippines as a State is not obliged to admit
aliens within its territory, once an alien is admitted, he cannot be deprived of life without due process of
law. This guarantee includes the means of livelihood. The shelter of protection under the due process
and equal protection clause is given to all persons, both aliens and citizens.
13

The trial court did not commit the errors assigned.
92

WHEREFORE, the decision appealed from is hereby affirmed, without pronouncement as to costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-52245 January 22, 1980
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Raul M. Gonzales for petitioners
Office of the Solicitor General for respondent.
MELENCIO-HERRERA, J :
This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioners,
in their own behalf and all others allegedly similarly situated, seeking to enjoin respondent Commission
on Elections (COMELEC) from implementing certain provisions of Batas Pambansa Big. 51, 52, and 53
for being unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has
filed his certificate of candidacy for said position of Governor in the forthcoming elections of January 30,
1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such,
has taken his oath to support the Constitution and obey the laws of the land. Petitioner, Alfredo
Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo.
Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as
discriminatory and contrary to the equal protection and due process guarantees of the Constitution. Said
Section 4 provides:
Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C of the
Constitution and disqualification mentioned in existing laws, which are hereby declared
as disqualification for any of the elective officials enumerated in section 1 hereof.
Any retired elective provincial city or municipal official who has received payment of the
retirement benefits to which he is entitled under the law, and who shall have been 6,5
years of age at the commencement of the term of office to which he seeks to be elected
shall not be qualified to run for the same elective local office from which he has retired
(Emphasis supplied)
Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the
classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation."
For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory provisions:
93

Sec 7. Terms of Office Unless sooner removed for cause, all local elective officials
hereinabove mentioned shall hold office for a term of six (6) years, which shall
commence on the first Monday of March 1980.
.... (Batas Pambansa Blg. 51) Sec. 4.
Sec. 4. ...
Any person who has committed any act of disloyalty to the State, including acts
amounting to subversion, insurrection, rebellion or other similar crimes, shall not be
qualified to be a candidate for any of the offices covered by this Act, or to participate in
any partisan political activity therein:
provided that a judgment of conviction for any of the aforementioned crimes shall be
conclusive evidence of such fact and
the filing of charges for the commission of such crimes before a civil court or military
tribunal after preliminary investigation shall be prima fascie evidence of such fact.
... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied).
Section 1. Election of certain Local Officials ... The election shall be held on January
30, 1980. (Batas Pambansa, Blg. 52)
Section 6. Election and Campaign Period The election period shall be fixed by the
Commission on Elections in accordance with Section 6, Art. XII-C of the Constitution.
The period of campaign shall commence on December 29, 1979 and terminate on
January 28, 1980. (ibid.)
In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the
accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg.
53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution, which provides that a
"bona fide candidate for any public office shall be it. from any form of harassment and discrimination.
"The question of accreditation will not be taken up in this case but in that of Bacalso, et als. vs.
COMELEC et als. No. L-52232) where the issue has been squarely raised,
Petitioners then pray that the statutory provisions they have challenged be declared null and void for
being violative of the Constitution.
I . The procedural Aspect
At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence,
traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions.
Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan Petitioner Dumlao does not
join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao in his.
The respectively contest completely different statutory provisions. Petitioner Dumlao has joined this suit
in his individual capacity as a candidate. The action of petitioners Igot and Salapantan is more in the
nature of a taxpayer's suit. Although petitioners plead nine constraints as the reason of their joint
Petition, it would have required only a modicum more of effort tor petitioner Dumlao, on one hand said
petitioners lgot and Salapantan, on the other, to have filed separate suits, in the interest of orderly
procedure.
For another, there are standards that have to be followed inthe exercise of the function of judicial review,
namely (1) the existence of an appropriate case:, (2) an interest personal and substantial by the party
94

raising the constitutional question: (3) the plea that the function be exercised at the earliest opportunity
and (4) the necessity that the constiutional question be passed upon in order to decide the case (People
vs. Vera 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with, which is, that the parties have raised
the issue of constitutionality early enough in their pleadings.
This Petition, however, has fallen far short of the other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the determination of actual cases and
controversies.
Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg.
52, quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and
seeks to prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has not been
adversely affected by the application of that provision. No petition seeking Dumlao's disqualification has
been filed before the COMELEC. There is no ruling of that constitutional body on the matter, which this
Court is being asked to review on Certiorari. His is a question posed in the abstract, a hypothetical issue,
and in effect, a petition for an advisory opinion from this Court to be rendered without the benefit of a
detailed factual record Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring
Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent
COMELEC as provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which
reads:
"Section 2. The Commission on Elections shall have the following power and functions:
1) xxx
2) Be the sole judge of all contests relating to the elections, returns and qualifications of
all members of the National Assembly and elective provincial and city officials.
(Emphasis supplied)
The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:
Section 11. Any decision, order, or ruling of the Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a
copy thereof.
B. Proper party.
The long-standing rule has been that "the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement" (People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition, that
Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has been
convicted nor charged with acts of disloyalty to the State, nor disqualified from being candidates for local
elective positions. Neither one of them has been calle ed to have been adversely affected by the
operation of the statutory provisions they assail as unconstitutional Theirs is a generated grievance.
They have no personal nor substantial interest at stake. In the absence of any litigate interest, they can
claim no locus standi in seeking judicial redress.
95

It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that the
rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary of
Public Works (110 Phil. 331 [1960], thus:
... it is well settled that the validity of a statute may be contested only by one who will
sustain a direct injury in consequence of its enforcement. Yet, there are many decisions
nullifying at the instance of taxpayers, laws providing for the disbursement of public
funds, upon the theory that "the expenditure of public funds, by an officer of the State for
the purpose of administering an unconstitutional act constitutes a misapplication of such
funds," which may be enjoined at the request of a taxpayer.
In the same vein, it has been held:
In the determination of the degree of interest essential to give the requisite standing to
attack the constitutionality of a statute, the general rule is that not only persons
individually affected, but also taxpayers have sufficient interest in preventing the illegal
expenditure of moneys raised by taxation and they may, therefore, question the
constitutionality of statutes requiring expenditure of public moneys. (Philippine
Constitution Association, Inc., et als., vs. Gimenez, et als., 15 SCRA 479 [1965]).
However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1,
and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the
elections to be held involve the expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional
protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a
misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110
Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners
seek to restrain respondent from wasting public funds through the enforcement of an invalid or
unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing
Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a
taxpayer's suit, per se is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43
SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to
whether or not a taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of an act of
the legislature will not be determined by the courts unless that question is properly raised and presented
in appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality
must be the very lis mota presented."
We have already stated that, by the standards set forth in People vs. Vera, the present is not an
"appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are actually
without cause of action. It follows that the necessity for resolving the issue of constitutionality is absent,
and procedural regularity would require that this suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not being
entirely without discretion in the matter. Thus, adherence to the strict procedural standard was relaxed in
Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs.
Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases having been penned by
our present Chief Justice. The reasons which have impelled us are the paramount public interest
involved and the proximity of the elections which will be held only a few days hence.
96

Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him personally is
belied by the fact that several petitions for the disqualification of other candidates for local positions
based on the challenged provision have already been filed with the COMELEC (as listed in p. 15,
respondent's Comment). This tellingly overthrows Dumlao's contention of intentional or purposeful
discrimination.
The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is neither
well taken. The constitutional guarantee of equal protection of the laws is subject to rational
classification. If the groupings are based on reasonable and real differentiations, one class can be
treated and regulated differently from another class. For purposes of public service, employees 65 years
of age, have been validly classified differently from younger employees. Employees attaining that age
are subject to compulsory retirement, while those of younger ages are not so compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require that candidates should not be
more than 65 years of age at the time they assume office, if applicable to everyone, might or might not
be a reasonable classification although, as the Solicitor General has intimated, a good policy of the law
would be to promote the emergence of younger blood in our political elective echelons. On the other
hand, it might be that persons more than 65 years old may also be good elective local officials.
Coming now to the case of retirees. Retirement from government service may or may not be a
reasonable disqualification for elective local officials. For one thing, there can also be retirees from
government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65,
for a 65 year old retiree could be a good local official just like one, aged 65, who is not a retiree.
But, in the case of a 65-year old elective local official, who has retired from a provincial, city or municipal
office, there is reason to disqualify him from running for the same office from which he had retired, as
provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of
the retiree for government work is present, and what is emphatically significant is that the retired
employee has already declared himself tired and unavailable for the same government work, but, which,
by virtue of a change of mind, he would like to assume again. It is for this very reason that inequality will
neither result from the application of the challenged provision. Just as that provision does not deny equal
protection neither does it permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons
similarly situated are sinlilarly treated.
In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is
proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not
violated by a reasonable classification based upon substantial distinctions, where the classification is
germane to the purpose of the law and applies to all Chose belonging to the same class (Peralta vs.
Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and
Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs. Hernandez 101 Phil.
1155 [1957]). The purpose of the law is to allow the emergence of younger blood in local governments.
The classification in question being pursuant to that purpose, it cannot be considered invalid "even it at
times, it may be susceptible to the objection that it is marred by theoretical inconsistencies" (Chief
Justice Fernando, The Constitution of the Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of the clear invalidity of the questioned
provision. Well accepted is the rule that to justify the nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are practically
unanimous in the pronouncement that laws shall not be declared invalid unless the conflict with the
Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing
Cooper vs. Telfair 4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the
compentence of the legislature to prescribe qualifications for one who desires to become a candidate for
office provided they are reasonable, as in this case.
97

In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of
Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in two parts.
The first provides:
a. judgment of conviction jor any of the aforementioned crimes shall be conclusive
evidence of such fact ...
The supremacy of the Constitution stands out as the cardinal principle. We are aware of the presumption
of validity that attaches to a challenged statute, of the well-settled principle that "all reasonable doubts
should be resolved in favor of constitutionality," and that Courts will not set aside a statute as
constitutionally defective "except in a clear case." (People vs. Vera, supra). We are constrained to hold
that this is one such clear case.
Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel (Article
IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous
with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a
candidate is disqualified from running for public office on the ground alone that charges have been filed
against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect,
except as to the degree of proof, no distinction is made between a person convicted of acts of dislotalty
and one against whom charges have been filed for such acts, as both of them would be ineligible to run
for public office. A person disqualified to run for public office on the ground that charges have been filed
against him is virtually placed in the same category as a person already convicted of a crime with the
penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office
during the term of the sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima facie evidence, and therefore, may be
rebutted, yet. there is "clear and present danger" that because of the proximity of the elections, time
constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the
prima facie evidence against him.
Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts rather
than before an administrative body such as the COMELEC. A highly possible conflict of findings
between two government bodies, to the extreme detriment of a person charged, will thereby be avoided.
Furthermore, a legislative/administrative determination of guilt should not be allowed to be substituted
for a judicial determination.
Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable portion
is mandated. It is separable from the first portion of the second paragraph of section 4 of Batas
Pambansa Big. 52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby declared valid.
Said paragraph reads:
SEC. 4. Special disqualification. In addition to violation of Section 10 of Article XII(C)
of the Constitution and disqualifications mentioned in existing laws which are hereby
declared as disqualification for any of the elective officials enumerated in Section 1
hereof, any retired elective provincial, city or municipal official, who has received
payment of the retirement benefits to which he is entitled under the law and who shall
have been 65 years of age at the commencement of the term of office to which he seeks
to be elected, shall not be qualified to run for the same elective local office from which he
has retired.
98

2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52
providing that "... the filing of charges for the commission of such crimes before a civil
court or military tribunal after preliminary investigation shall be prima facie evidence of
such fact", is hereby declared null and void, for being violative of the constitutional
presumption of innocence guaranteed to an accused.
SO ORDERED.






















99

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D. ACHACOSO,
as Administrator of the Philippine Overseas Employment Administration, respondents.
Gutierrez & Alo Law Offices for petitioner.
SARMIENTO, J .:
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm "engaged
principally in the recruitment of Filipino workers, male and female, for overseas placement,"
1
challenges
the Constitutional validity of Department Order No. 1, Series of 1988, of the Department of Labor and
Employment, in the character of "GUIDELINES GOVERNING THE TEMPORARY SUSPENSION OF
DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS," in this petition for certiorari
and prohibition. Specifically, the measure is assailed for "discrimination against males or females;"
2
that
it "does not apply to all Filipino workers but only to domestic helpers and females with similar skills;"
3

and that it is violative of the right to travel. It is held likewise to be an invalid exercise of the lawmaking
power, police power being legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution, providing
for worker participation "in policy and decision-making processes affecting their rights and benefits as
may be provided by law."
4
Department Order No. 1, it is contended, was passed in the absence of prior
consultations. It is claimed, finally, to be in violation of the Charter's non-impairment clause, in addition to
the "great and irreparable injury" that PASEI members face should the Order be further enforced.
On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and
Administrator of the Philippine Overseas Employment Administration, filed a Comment informing the
Court that on March 8, 1988, the respondent Labor Secretary lifted the deployment ban in the states of
Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and Switzerland. * In
submitting the validity of the challenged "guidelines," the Solicitor General invokes the police power of
the Philippine State.
It is admitted that Department Order No. 1 is in the nature of a police power measure. The only question
is whether or not it is valid under the Constitution.
The concept of police power is well-established in this jurisdiction. It has been defined as the "state
authority to enact legislation that may interfere with personal liberty or property in order to promote the
general welfare."
5
As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in
order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled
in general terms to underscore its all-comprehensive embrace.
"Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits."
6

100

It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter.
Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and
sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital
functions of governance. Marshall, to whom the expression has been credited,
7
refers to it succinctly as
the plenary power of the State "to govern its citizens."
8

"The police power of the State ... is a power coextensive with self- protection, and it is not inaptly termed
the "law of overwhelming necessity." It may be said to be that inherent and plenary power in the State
which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society."
9

It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the
conception that men in organizing the state and imposing upon its government limitations to safeguard
constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to
obstruct unreasonably the enactment of such salutary measures calculated to ensure communal peace,
safety, good order, and welfare."
10
Significantly, the Bill of Rights itself does not purport to be an
absolute guaranty of individual rights and liberties "Even liberty itself, the greatest of all rights, is not
unrestricted license to act according to one's will."
11
It is subject to the far more overriding demands and
requirements of the greater number.
Notwithstanding its extensive sweep, police power is not without its own limitations. For all its awesome
consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in that event, it
defeats the purpose for which it is exercised, that is, to advance the public good. Thus, when the power
is used to further private interests at the expense of the citizenry, there is a clear misuse of the power.
12

In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity.
13
In the absence of clear and convincing
evidence to the contrary, the presumption logically stands.
The petitioner has shown no satisfactory reason why the contested measure should be nullified. There is
no question that Department Order No. 1 applies only to "female contract workers,"
14
but it does not
thereby make an undue discrimination between the sexes. It is well-settled that "equality before the law"
under the Constitution
15
does not import a perfect Identity of rights among all men and women. It admits
of classifications, provided that (1) such classifications rest on substantial distinctions; (2) they are
germane to the purposes of the law; (3) they are not confined to existing conditions; and (4) they apply
equally to all members of the same class.
16

The Court is satisfied that the classification made-the preference for female workers rests on
substantial distinctions.
As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen our female
labor force abroad, especially domestic servants, amid exploitative working conditions marked by, in not
a few cases, physical and personal abuse. The sordid tales of maltreatment suffered by migrant Filipina
workers, even rape and various forms of torture, confirmed by testimonies of returning workers, are
compelling motives for urgent Government action. As precisely the caretaker of Constitutional rights, the
Court is called upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the
Government's efforts.
The same, however, cannot be said of our male workers. In the first place, there is no evidence that,
except perhaps for isolated instances, our men abroad have been afflicted with an Identical
predicament. The petitioner has proffered no argument that the Government should act similarly with
respect to male workers. The Court, of course, is not impressing some male chauvinistic notion that men
are superior to women. What the Court is saying is that it was largely a matter of evidence (that women
domestic workers are being ill-treated abroad in massive instances) and not upon some fanciful or
101

arbitrary yardstick that the Government acted in this case. It is evidence capable indeed of
unquestionable demonstration and evidence this Court accepts. The Court cannot, however, say the
same thing as far as men are concerned. There is simply no evidence to justify such an inference.
Suffice it to state, then, that insofar as classifications are concerned, this Court is content that
distinctions are borne by the evidence. Discrimination in this case is justified.
As we have furthermore indicated, executive determinations are generally final on the Court. Under a
republican regime, it is the executive branch that enforces policy. For their part, the courts decide, in the
proper cases, whether that policy, or the manner by which it is implemented, agrees with the
Constitution or the laws, but it is not for them to question its wisdom. As a co-equal body, the judiciary
has great respect for determinations of the Chief Executive or his subalterns, especially when the
legislature itself has specifically given them enough room on how the law should be effectively enforced.
In the case at bar, there is no gainsaying the fact, and the Court will deal with this at greater length
shortly, that Department Order No. 1 implements the rule-making powers granted by the Labor Code.
But what should be noted is the fact that in spite of such a fiction of finality, the Court is on its own
persuaded that prevailing conditions indeed call for a deployment ban.
There is likewise no doubt that such a classification is germane to the purpose behind the measure.
Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance the protection for
Filipino female overseas workers"
17
this Court has no quarrel that in the midst of the terrible
mistreatment Filipina workers have suffered abroad, a ban on deployment will be for their own good and
welfare.
The Order does not narrowly apply to existing conditions. Rather, it is intended to apply indefinitely so
long as those conditions exist. This is clear from the Order itself ("Pending review of the administrative
and legal measures, in the Philippines and in the host countries . . ."
18
), meaning to say that should the
authorities arrive at a means impressed with a greater degree of permanency, the ban shall be lifted. As
a stop-gap measure, it is possessed of a necessary malleability, depending on the circumstances of
each case. Accordingly, it provides:
9. LIFTING OF SUSPENSION. The Secretary of Labor and Employment (DOLE) may,
upon recommendation of the Philippine Overseas Employment Administration (POEA),
lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and
protection of Filipino workers.
19

The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas
workers. That it does not apply to "all Filipina workers"
20
is not an argument for unconstitutionality. Had
the ban been given universal applicability, then it would have been unreasonable and arbitrary. For
obvious reasons, not all of them are similarly circumstanced. What the Constitution prohibits is the
singling out of a select person or group of persons within an existing class, to the prejudice of such a
person or group or resulting in an unfair advantage to another person or group of persons. To apply the
ban, say exclusively to workers deployed by A, but not to those recruited by B, would obviously clash
with the equal protection clause of the Charter. It would be a classic case of what Chase refers to as a
law that "takes property from A and gives it to B."
21
It would be an unlawful invasion of property rights
and freedom of contract and needless to state, an invalid act.
22
(Fernando says: "Where the
classification is based on such distinctions that make a real difference as infancy, sex, and stage of
civilization of minority groups, the better rule, it would seem, is to recognize its validity only if the young,
the women, and the cultural minorities are singled out for favorable treatment. There would be an
element of unreasonableness if on the contrary their status that calls for the law ministering to their
needs is made the basis of discriminatory legislation against them. If such be the case, it would be
102

difficult to refute the assertion of denial of equal protection."
23
In the case at bar, the assailed Order
clearly accords protection to certain women workers, and not the contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas deployment. From
scattered provisions of the Order, it is evident that such a total ban has hot been contemplated. We
quote:
5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and workers of
similar skills defined herein to the following [sic] are authorized under these guidelines
and are exempted from the suspension.
5.1 Hirings by immediate members of the family of Heads of State and
Government;
5.2 Hirings by Minister, Deputy Minister and the other senior government
officials; and
5.3 Hirings by senior officials of the diplomatic corps and duly accredited
international organizations.
5.4 Hirings by employers in countries with whom the Philippines have
[sic] bilateral labor agreements or understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR SKILLS--
Vacationing domestic helpers and/or workers of similar skills shall be allowed to process
with the POEA and leave for worksite only if they are returning to the same employer to
finish an existing or partially served employment contract. Those workers returning to
worksite to serve a new employer shall be covered by the suspension and the provision
of these guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment (DOLE) may,
upon recommendation of the Philippine Overseas Employment Administration (POEA),
lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to ensure the
welfare and protection of Filipino workers.
24

xxx xxx xxx
The consequence the deployment ban has on the right to travel does not impair the right. The right to
travel is subject, among other things, to the requirements of "public safety," "as may be provided by law."
25
Department Order No. 1 is a valid implementation of the Labor Code, in particular, its basic policy to
"afford protection to labor,"
26
pursuant to the respondent Department of Labor's rule-making authority
vested in it by the Labor Code.
27
The petitioner assumes that it is unreasonable simply because of its
impact on the right to travel, but as we have stated, the right itself is not absolute. The disputed Order is
a valid qualification thereto.
103

Neither is there merit in the contention that Department Order No. 1 constitutes an invalid exercise of
legislative power. It is true that police power is the domain of the legislature, but it does not mean that
such an authority may not be lawfully delegated. As we have mentioned, the Labor Code itself vests the
Department of Labor and Employment with rulemaking powers in the enforcement whereof.
28

The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and decision-
making processes affecting their rights and benefits"
29
is not well-taken. The right granted by this
provision, again, must submit to the demands and necessities of the State's power of regulation.
The Constitution declares that:
Sec. 3. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for
all.
30

"Protection to labor" does not signify the promotion of employment alone. What concerns the
Constitution more paramountly is that such an employment be above all, decent, just, and humane. It is
bad enough that the country has to send its sons and daughters to strange lands because it cannot
satisfy their employment needs at home. Under these circumstances, the Government is duty-bound to
insure that our toiling expatriates have adequate protection, personally and economically, while away
from home. In this case, the Government has evidence, an evidence the petitioner cannot seriously
dispute, of the lack or inadequacy of such protection, and as part of its duty, it has precisely ordered an
indefinite ban on deployment.
The Court finds furthermore that the Government has not indiscriminately made use of its authority. It is
not contested that it has in fact removed the prohibition with respect to certain countries as manifested
by the Solicitor General.
The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier
purposes targetted by the Government.
31
Freedom of contract and enterprise, like all other freedoms, is
not free from restrictions, more so in this jurisdiction, where laissez faire has never been fully accepted
as a controlling economic way of life.
This Court understands the grave implications the questioned Order has on the business of recruitment.
The concern of the Government, however, is not necessarily to maintain profits of business firms. In the
ordinary sequence of events, it is profits that suffer as a result of Government regulation. The interest of
the State is to provide a decent living to its citizens. The Government has convinced the Court in this
case that this is its intent. We do not find the impugned Order to be tainted with a grave abuse of
discretion to warrant the extraordinary relief prayed for.
WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Cortes
and Grio-Aquino, JJ., concur.
Gutierrez, Jr. and Medialdea, JJ., are on leave.


104

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 113811 October 7, 1994
ISHMAEL HIMAGAN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON. JUDGE HILARIO MAPAYO, RTC, Br. 11, Davao City,
respondents.
Victorio S. Advincula for petitioner.
KAPUNAN, J .:
Petitioner, a policeman assigned with the medical company of the Philippine National Police Regional
Headquarters at Camp Catitigan, Davao City, was implicated in the killing of Benjamin Machitar, Jr. and
the attempted murder of Bernabe Machitar. After the informations for murder
1
and attempted murder
2

were filed with the Regional Trial Court, Branch 11, Davao City, on September 16, 1992, the trial court
issued an Order suspending petitioner until the termination of the case on the basis of Section 47, R.A.
6975, otherwise known as Department of Interior and Local Government Act of 1990, which provides:
Sec. 47. Preventive Suspension Pending Criminal Case. Upon the filing of a complaint
or information sufficient in form and substance against a member of the PNP for grave
felonies where the penalty imposed by law is six (6) years and one (1) day or more, the
court shall immediately suspend the accused from office until the case is terminated.
Such case shall be subject to continuous trial and shall be terminated within ninety (90)
days from arraignment of the accused (Emphasis ours).
On October 11, 1993, petitioner filed a motion to lift the order for his suspension,
3
relying on Section 42
of P.D. 807 of the Civil Service Decree, that his suspension should be limited to ninety (90) days and,
also, on our ruling in Deloso v. Sandiganbayan,
4
and Layno v. Sandiganbayan.
5
In his order dated
December 14, 1993
6
respondent judge denied the motion pointing out that under Section 47 of R.A.
6975, the accused shall be suspended from office until his case is terminated. The motion for
reconsideration of the order of denial was, likewise, denied.
7
Hence, the petition for certiorari and
mandamus to set aside the orders of respondent Judge and to command him to lift petitioner's
preventive suspension.
We find the petition devoid of merit.
There is no question that the case of petitioner who is charged with murder and attempted murder under
the Revised Penal Code falls squarely under Sec. 47 of RA 6975 which specifically applies to members
of the PNP. In dispute however, is whether the provision limits the period of suspension to 90 days,
considering that while the first sentence of Sec. 47 provides that the accused who is charged with grave
felonies where the penalty imposed is six (6) years and one (1) day shall be suspended from office "until
the case is terminated", the second sentence of the same section mandates that the case, which shall
be subject to continuous trial, shall be terminated within 90 days from the arraignment of the accused.
Petitioner posits that as a member of the Philippine National Police, under Sec. 91 of RA 6975 which
reads:
105

Sec. 91. The Civil Service Law and its implementing rules and regulations shall apply to
all personnel of the Department.
he is covered by the Civil Service Law, particularly Sec. 42 of PD 807 of the Civil Service Decree, which
limits the maximum period of suspension to ninety (90) days, thus:
Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. When
the administrative case against the officer or employee under preventive suspension is
not finally decided by the disciplining authority within the period of ninety (90) days after
the date of suspension of the respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the service; Provided, That when the
delay in the disposition of the case is due to the fault, negligence or petition of the
respondent, the period of delay shall not be counted in computing the period of
suspension herein provided.
He claims that an imposition of preventive suspension of over 90 days is contrary to the Civil Service
Law and would be a violation of his constitutional right to equal protection of laws. He further asserts that
the requirements in
Sec. 47 of R.A. 6975 that "the court shall immediately suspend the accused from office until the case is
terminated" and the succeeding sentence, "Such case shall be subject to continuous trial and shall be
terminated within ninety (90) days from arraignment of the accused" are both substantive and should be
taken together to mean that if the case is not terminated within 90 days, the period of preventive
suspension must be lifted because of the command that the trial must be terminated within ninety (90)
days from arraignment.
We disagree.
First. The language of the first sentence of Sec. 47 of R.A. 6975 is clear, plain and free from ambiguity. It
gives no other meaning than that the suspension from office of the member of the PNP charged with
grave offense where the penalty is six years and one day or more shall last until the termination of the
case. The suspension cannot be lifted before the termination of the case. The second sentence of the
same Section providing that the trial must be terminated within ninety (90) days from arraignment does
not qualify or limit the first sentence. The two can stand independently of each other. The first refers to
the period of suspension. The second deals with the time frame within which the trial should be finished.
Suppose the trial is not terminated within ninety days from arraignment, should the suspension of
accused be lifted? The answer is certainly no. While the law uses the mandatory word "shall" before the
phrase "be terminated within ninety (90) days", there is nothing in R.A. 6975 that suggests that the
preventive suspension of the accused will be lifted if the trial is not terminated within that period.
Nonetheless, the Judge who fails to decide the case within the period without justifiable reason may be
subject to administrative sanctions and, in appropriate cases where the facts so warrant, to criminal
8
or
civil liability.
9
If the trial is unreasonably delayed without fault of the accused such that he is deprived of
his right to a speedy trial, he is not without a remedy. He may ask for the dismissal of the case. Should
the court refuse to dismiss the case, the accused can compel its dismissal by certiorari, prohibition or
mandamus, or secure his liberty by habeas corpus.
10

Second. Petitioner misapplies Sec. 42 of PD 807. A meticulous reading of the section clearly shows that
it refers to the lifting of preventive suspension in pending administrative investigation, not in criminal
cases, as here. What is more, Section 42 expressly limits the period of preventive suspension to ninety
(90) days. Sec. 91 of R.A. 6975 which states that "The Civil Service Law and its implementing rules shall
apply to all personnel of the Department" simply means that the provisions of the Civil Service Law and
its implementing rules and regulations are applicable to members of the Philippine National Police
insofar as the provisions, rules and regulations are not inconsistent with
R.A. 6975. Certainly, Section 42 of the Civil Service Decree which limits the preventive suspension to
ninety (90) days cannot apply to members of the PNP because Sec. 47 of R.A. 6995 provides differently,
106

that is, the suspension where the penalty imposed by law exceeds six (6) years shall continue until the
case is terminated.
Third. Petitioner's reliance on Layno and Deloso is misplaced. These cases all stemmed from charges in
violation of R.A. 3019 (1060), otherwise known as the Anti-Graft and Corrupt Practices Act which, unlike
R.A. 6975, is silent on the duration of the preventive suspension. Sec. 13 of R.A. 3019 reads as follows:
Suspension and loss of benefits. Any public officer against whom any criminal
prosecution under a valid information under this Act or under the provisions of the
Revised Penal Code on bribery is pending in court, shall be suspended from office.
Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits
under any law, but if he is acquitted, he shall be entitled to reinstatement and to the
salaries and benefits which he failed to receive during suspension, unless in the
meantime administrative proceedings have been filed against him.
In the case of Layno, the duly elected mayor of Lianga, Surigao del Sur, was preventively suspended
after an information was filed against him for offenses under R.A. 3019 (1060), the Anti-Graft Corrupt
Practices Act. He had been suspended for four (4) months at the time he filed a motion to lift his
preventive suspension. We held that his indefinite preventive suspension violated the "equal protection
clause" and shortened his term of office. Thus:
2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of
office does not expire until 1986. Were it not for this information and the suspension
decreed by the Sandiganbayan according to the Anti-Graft and Corrupt Practices Act, he
would have been all this while in the full discharge of his functions as such municipal
mayor. He was elected precisely to do so. As of October 26, 1983, he has been unable
to. It is a basic assumption of the electoral process implicit in the right of suffrage that the
people are entitled to the services of elective officials of their choice. For misfeasance or
malfeasance, any of them could, of course, be proceeded against administratively or, as
in this instance, criminally. In either case, his culpability must be established. Moreover, if
there be a criminal action, he is entitled to the constitutional presumption of innocence. A
preventive suspension may be justified. Its continuance, however, for an unreasonable
length of time raises a due process question. For even if thereafter he were acquitted, in
the meanwhile his right to hold office had been nullified. Clearly, there would be in such a
case an injustice suffered by him. Nor is he the only victim. There is injustice inflicted
likewise on the people of Lianga. They were deprived of the services of the man they had
elected to serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted
continuance of this preventive suspension had outrun the bounds of reason and resulted
in sheer oppression. A denial of due process is thus quite manifest. It is to avoid such an
unconstitutional application that the order of suspension should be lifted.
3. Nor is it solely the denial of procedural due process that is apparent. There is likewise
an equal protection question. If the case against petitioner Layno were administrative in
character the Local Government Code would be applicable. It is therein clearly provided
that while preventive suspension is allowable for the causes therein enumerated, there is
this emphatic limitation on the duration thereof: "In all cases, preventive suspension shall
not extend beyond sixty days after the start of said suspension." It may be recalled that
the principle against indefinite suspension applies equally to national government
officials. So it was held in the leading case of Garcia v. Hon. Executive Secretary.
According to the opinion of Justice Barrera: "To adopt the theory of respondents that an
officer appointed by the President, facing administrative charges, can be preventively
suspended indefinitely, would be to countenance a situation where the preventive
suspension can, in effect, be the penalty itself without a finding of guilt after due hearing,
contrary to the express mandate of the Constitution and the Civil Service law." Further:
"In the guise of a preventive suspension, his term of office could be shortened and he
107

could in effect, be removed without a finding of a cause duly established after due
hearing, in violation of the Constitution. Clearly then, the policy of the law mandated by
the Constitution frowns at a suspension of indefinite duration. In this particular case, the
mere fact that petitioner is facing a charge under the Anti-Graft and Corrupt Practices Act
does not justify a different rule of law. To do so would be to negate the safeguard of the
equal protection guarantee.
11

The case of Deloso, likewise, involved another elective official who
was preventively suspended as provincial governor, also under RA 3019 the Anti-Graft Law. This Court,
faced with similar factual circumstances as in Layno, applied the ruling in the latter case "in relation to
the principles of due process and equal protection."
It is readily apparent that Section 13 of R.A. 3019 upon which the preventive suspension of the accused
in Layno and Deloso was based is silent with respect to the duration of the preventive suspension, such
that the suspension of the accused therein for a prolonged and unreasonable length of time raised a due
process question. Not so in the instant case. Petitioner is charged with murder under the Revised Penal
Code and it is undisputed that he falls squarely under Sec. 47 of R.A. 6975 which categorically states
that his suspension shall last until the case is terminated. The succeeding sentence of the same section
requires the case to be subjected to continuous trial which shall be terminated within ninety (90) days
from arraignment of the accused. As previously emphasized, nowhere in the law does it say that after
the lapse of the 90-day period for trial, the preventive suspension should be lifted. The law is clear, the
ninety (90) days duration applies to the trial of the case not to the suspension. Nothing else should be
read into the law. When the words and phrases of the statute are clear and unequivocal, their meaning
determined from the language employed and the statute must be taken to mean exactly what it says.
12

Fourth. From the deliberations of the Bicameral Conference Committee on National Defense relative to
the bill that became R.A. 6975, the meaning of Section 47 of R.A. 6975 insofar as the period of
suspension is concerned becomes all the more clear. We quote:
So other than that in that particular section, ano ba itong "Jurisdiction in
Criminal Cases?" What is this all about?
REP. ZAMORA. In case they are charged with crimes.
THE CHAIRMAN (SEN. MACEDA). Ah, the previous one is
administrative, no. Now, if it is charged with a crime, regular courts.
SEN. GONZALES. Ano, the courts mismo ang magsasabing . . .
THE CHAIRMAN (SEN. MACEDA). No, the jurisdiction.
REP. ZAMORA. The jurisdiction if there is robbery.
THE CHAIRMAN (SEN. MACEDA). Okay. "Preventive Suspension
Pending Criminal Case. Upon the filing of a complaint or informations
sufficient in form and substance against a member of the PNP for grave
felonies where the penalty imposed by law is six years and one day or
more, the court shall immediately suspend the accused from the office
until the case is terminated."
REP. ALBANO. Where are we now Mr. Chairman.
THE CHAIRMAN (SEN. MACEDA). Grave felonies ito e. Six years and
one day or more.
108

SEN. SAGUISAG. Kung five years and litigation ng Supreme Court,
ganoon ba and . . .?
THE CHAIRMAN (SEN. MACEDA). Hindi, dahil iyong iba panay
disciplinary iyon e.
SEN. PIMENTEL. Anong page iyan, Rene?
THE CHAIRMAN (SEN. MACEDA). Page 29 Preventive Suspension.
REP. GUTANG. Ang complaint kasi ng mga tao, pagka may pulis na may
criminal case at may baril pa rin at nag-uuniforme, hindi magandang
tingnan e. So parang natatakot iyong mga witnesses.
SEN. GONZALES. Anyway, kung ma-exempt na rito naman siya e.
REP. GUTANG. Mayroong entitlement to reinstatement and pay. . . .
xxx xxx xxx
SEN. PIMENTEL. Dito sa "Preventive Suspension Pending Criminal
Case." Okay ito but I think we should also mandate the early termination
of the case. Ibig sabihin, okay, hindi ba "the suspension of the accused
from office until the case is terminated?" Alam naman natin ang takbo ng
mga kaso rito sa ating bansa e.
REP. ZAMORA. Twenty days, okay na.
SEN. PIMENTEL. Hindi, and ibig kong sabihin, let us just assume that a
case can be, as Rene pointed out, can run to six years bago
ma-terminate, sometimes ten years pa nga e. Okay, but maybe we
should mandate. . .
REP. ZAMORA. Continuous hearing.
SEN. PIMENTEL. Not only that, but the case must be terminated within a
period.
REP. ALBANO. Ninety days na ho sa Supreme Court the trial.
SEN. PIMENTEL. Ha?
REP. ALBANO. The trial must be done within ninety days,
SEN. PIMENTEL. Ang ibig kong sabihin kung maari sanang ilagay rito
that the case shall also be terminated in one year from the time . . .
aywan ko kung kaya nating gawin iyon.
REP. ALBANO. One solution, Mr. Chairman.
THE CHAIRMAN (SEN. MACEDA). Criminal case? Hindi ba that has all
been held as directory even if you put it in the law?
109

SEN. PIMENTEL. I know, but, iyon na nga, we are looking at some
solution to a particular situation.
SEN. ANGARA. Let's have continuous hearing and be terminated not
later than ninety days.
REP. ZAMORA. Ang point ni Ernie, that's really only the directory. All of
these, well, looks exactly the same thing.
SEN. ANGARA. No, but at least, we will shorten it up in a case like this.
We are really keen on having it quick, swift.
SEN. PIMENTEL. Swift justice.
REP. ALBANO. Mr. Chairman.
THE CHAIRMAN. (SEN. MACEDA). Yes.
REP. ALBANO. Following the Veloso case in Anti-graft cases before the
Sandiganbayan, the preventive suspension is only ninety days. In no
case shall it go beyond ninety days which can also be applicable here
because this is a preventive suspension.
SEN. PIMENTEL. No, because you can legislate at least.
SEN. SAGUISAG. But then the case may be anti-graft ha. The case filed
against a policeman may be anti-graft in nature. . .
SEN. PIMENTEL. Correct, correct, but is that a constitutional provision?
Is it?
REP. ALBANO. No, but as a standard procedure.
SEN. PIMENTEL. Then you can legislate.
THE CHAIRMAN (SEN. MACEDA). No, because this particular provision
is for criminal cases. I know anti-graft is a criminal case but here we are
talking, let's say, of murder, rape, treason, robbery. That's why it is in that
context that there is a difference between a purely anti-graft case and a
criminal case which could be a serious case since it is six years and one
day or more, so it must be already a grave felony.
xxx xxx xxx
REP. ALBANO. . . .
What I mean to say is, preventive suspension, we can use the
Veloso case.
THE CHAIRMAN (SEN. MACEDA). No, that's too short, that's what I am
saying. The feeling here is, for policeman, we have to be stricter
especially if it is a criminal case.
110

What Rene is just trying to say is, he is agreeable that the suspension is
until the case is terminated, but he just wants some administrative
balancing to expedite it. So let us study what kind of language could be
done along that line. So just on the National Police Commission . . .
SEN. ANGARA. Can I suggest a language that may reflect. . .
THE CHAIRMAN (SEN. MACEDA). Okay, please.
SEN. ANGARA. "Such case shall be subject to continuous trial and be
terminated not later than . . ." whatever we agree.
THE CHAIRMAN (SEN. MACEDA). Okay, so let's study that.
So if there are any further amendments to Chapter 2 on the National
Police Commission. . . . . .
13

The foregoing discussions reveal the legislative intent to place on preventive suspension a member of
the PNP charged with grave felonies where the penalty imposed by law exceeds six years of
imprisonment and which suspension continues until the case against him is terminated.
The reason why members of the PNP are treated differently from the other classes of persons charged
criminally or administratively insofar as the application of the rule on preventive suspension is concerned
is that policemen carry weapons and the badge of the law which can be used to harass or intimidate
witnesses against them, as succinctly brought out in the legislative discussions.
If a suspended policeman criminally charged with a serious offense is reinstated to his post while his
case is pending, his victim and the witnesses against him are obviously exposed to constant threat and
thus easily cowed to silence by the mere fact that the accused is in uniform and armed. The imposition
of preventive suspension for over 90 days under Section 47 of
R.A. 6975 does not violate the suspended policeman's constitutional right to equal protection of the laws.
The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate
discrimination and oppression based on inequality. Recognizing the existence of real differences among
men, the equal protection clause does not demand absolute equality. It merely requires that all persons
shall be treated alike, under like circumstances and conditions both as to the privileges conferred and
liabilities enforced.
14
Thus, the equal protection clause does not absolutely forbid classifications, such as
the one which exists in the instant case. If the classification is based on real and substantial differences;
15
is germane to the purpose of the law;
16
applies to all members of the same
class;
17
and applies to current as well as future conditions,
18
the classification may not be impugned as
violating the Constitution's equal protection guarantee. A distinction based on real and reasonable
considerations related to a proper legislative purpose such as that which exists here is neither
unreasonable, capricious nor unfounded.
ACCORDINGLY, the petition is hereby DISMISSED.
SO ORDERED.
Narvasa, C.J., Cruz, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug and
Mendoza, JJ., concur. Feliciano, Padilla and Bidin, JJ., are on leave.

111

EN BANC

ELEAZAR P. QUINTO and
GERINO A. TOLENTINO, JR.,
Petitioners,







- versus -








COMMISSION ON ELECTIONS,
Respondent.



G.R. No. 189698

Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD, and
VILLARAMA, JR., JJ.

Promulgated:

December 1, 2009
x-----------------------------------------------------------------------------------------x


DECISION

NACHURA, J .:


In our predisposition to discover the original intent of a statute, courts become the
unfeeling pillars of the status quo. Little do we realize that statutes or even constitutions are
bundles of compromises thrown our way by their framers. Unless we exercise vigilance, the
statute may already be out of tune and irrelevant to our day.
1[1]
It is in this light that we
should address the instant case.

Before the Court is a petition for prohibition and certiorari, with prayer for the
issuance of a temporary restraining order and a writ of preliminary injunction, assailing
Section 4(a) of Resolution No. 8678 of the Commission on Elections (COMELEC). In view
of pressing contemporary events, the petition begs for immediate resolution.

The Antecedents



112


This controversy actually stems from the law authorizing the COMELEC to use an
automated election system (AES).
On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436, entitled
AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED
ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN
SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS
THEREFOR AND FOR OTHER PURPOSES. Section 11 thereof reads:

SEC. 11. Official Ballot.The Commission shall prescribe the size and
form of the official ballot which shall contain the titles of the positions to be
filled and/or the propositions to be voted upon in an initiative, referendum or
plebiscite. Under each position, the names of candidates shall be arranged
alphabetically by surname and uniformly printed using the same type size. A
fixed space where the chairman of the Board of Election inspectors shall affix
his/her signature to authenticate the official ballot shall be provided.

Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the
election shall not be later than one hundred twenty (120) days before the
elections: Provided, That, any elective official, whether national or
local, running for any office other than the one which he/she is holding
in a permanent capacity, except for president and vice president, shall
be deemed resigned only upon the start of the campaign period
corresponding to the position for which he/she is running: Provided,
further, That, unlawful acts or omissions applicable to a candidate shall
take effect upon the start of the aforesaid campaign period: Provided,
finally, That, for purposes of the May 11, 1998 elections, the deadline for filing
of the certificate of candidacy for the positions of President, Vice President,
Senators and candidates under the Party-List System as well as petitions for
registration and/or manifestation to participate in the Party-List System shall
be on February 9, 1998 while the deadline for the filing of certificate of
candidacy for other positions shall be on March 27, 1998.

The official ballots shall be printed by the National Printing Office
and/or the Bangko Sentral ng Pilipinas at the price comparable with that of
private printers under proper security measures which the Commission shall
adopt. The Commission may contract the services of private printers upon
certification by the National Printing Office/Bangko Sentral ng Pilipinas that it
cannot meet the printing requirements. Accredited political parties and
deputized citizens' arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots.

To prevent the use of fake ballots, the Commission through the
Committee shall ensure that the serial number on the ballot stub shall be
printed in magnetic ink that shall be easily detectable by inexpensive
hardware and shall be impossible to reproduce on a photocopying machine
113

and that identification marks, magnetic strips, bar codes and other technical
and security markings, are provided on the ballot.

The official ballots shall be printed and distributed to each
city/municipality at the rate of one (1) ballot for every registered voter with a
provision of additional four (4) ballots per precinct.
2[2]



Almost a decade thereafter, Congress amended the law on January 23, 2007 by
enacting R.A. No. 9369, entitled AN ACT AMENDING REPUBLIC ACT NO. 8436,
ENTITLED AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN
AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL
ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES,
TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF
ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS
AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS,
PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES. Section 13 of the
amendatory law modified Section 11 of R.A. No. 8436, thus:

SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to
read as follows:

Section 15. Official Ballot.The Commission shall prescribe the
format of the electronic display and/or the size and form of the official ballot,
which shall contain the titles of the position to be filled and/or the propositions
to be voted upon in an initiative, referendum or plebiscite. Where practicable,
electronic displays must be constructed to present the names of all
candidates for the same position in the same page or screen, otherwise, the
electronic displays must be constructed to present the entire ballot to the
voter, in a series of sequential pages, and to ensure that the voter sees all of
the ballot options on all pages before completing his or her vote and to allow
the voter to review and change all ballot choices prior to completing and
casting his or her ballot. Under each position to be filled, the names of
candidates shall be arranged alphabetically by surname and uniformly
indicated using the same type size. The maiden or married name shall be
listed in the official ballot, as preferred by the female candidate. Under each
proposition to be vote upon, the choices should be uniformly indicated using
the same font and size.

A fixed space where the chairman of the board of election inspectors
shall affix his/her signature to authenticate the official ballot shall be provided.

For this purpose, the Commission shall set the deadline for the
filing of certificate of candidacy/petition of registration/manifestation to



114

participate in the election. Any person who files his certificate of
candidacy within this period shall only be considered as a candidate at
the start of the campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions applicable to a
candidate shall take effect only upon the start of the aforesaid campaign
period: Provided, finally, That any person holding a public appointive
office or position, including active members of the armed forces, and
officers and employees in government-owned or -controlled
corporations, shall be considered ipso facto resigned from his/her office
and must vacate the same at the start of the day of the filing of his/her
certificate of candidacy.




Political parties may hold political conventions to nominate their official
candidates within thirty (30) days before the start of the period for filing a
certificate of candidacy.

With respect to a paper-based election system, the official ballots shall
be printed by the National Printing Office and/or the Bangko Sentral ng
Pilipinas at the price comparable with that of private printers under proper
security measures which the Commission shall adopt. The Commission may
contract the services of private printers upon certification by the National
Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and deputized citizens arms of the
Commission shall assign watchers in the printing, storage and distribution of
official ballots.

To prevent the use of fake ballots, the Commission through the
Committee shall ensure that the necessary safeguards, such as, but not
limited to, bar codes, holograms, color shifting ink, microprinting, are provided
on the ballot.

The official ballots shall be printed and distributed to each
city/municipality at the rate of one ballot for every registered voter with a
provision of additional three ballots per precinct.
3[3]



Pursuant to its constitutional mandate to enforce and administer election laws,
COMELEC issued Resolution No. 8678,
4[4]
the Guidelines on the Filing of Certificates of





115

Candidacy (CoC) and Nomination of Official Candidates of Registered Political Parties in
Connection with the May 10, 2010 National and Local Elections. Sections 4 and 5 of
Resolution No. 8678 provide:

SEC. 4. Effects of Filing Certificates of Candidacy.a) Any person
holding a public appointive office or position including active members of the
Armed Forces of the Philippines, and other officers and employees in
government-owned or controlled corporations, shall be considered ipso facto
resigned from his office upon the filing of his certificate of candidacy.

b) Any person holding an elective office or position shall not be
considered resigned upon the filing of his certificate of candidacy for the same
or any other elective office or position.

SEC. 5. Period for filing Certificate of Candidacy.The certificate of
candidacy shall be filed on regular days, from November 20 to 30, 2009,
during office hours, except on the last day, which shall be until midnight.

Alarmed that they will be deemed ipso facto resigned from their offices the moment
they file their CoCs, petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr., who hold
appointive positions in the government and who intend to run in the coming elections,
5[5]

filed the instant petition for prohibition and certiorari, seeking the declaration of the afore-
quoted Section 4(a) of Resolution No. 8678 as null and void.

The Petitioners Contention

Petitioners contend that the COMELEC gravely abused its discretion when it issued
the assailed Resolution. They aver that the advance filing of CoCs for the 2010 elections is
intended merely for the purpose of early printing of the official ballots in order to cope with
time limitations. Such advance filing does not automatically make the person who filed the
CoC a candidate at the moment of filing. In fact, the law considers him a candidate only at
the start of the campaign period. Petitioners then assert that this being so, they should not
be deemed ipso facto resigned from their government offices when they file their CoCs,
because at such time they are not yet treated by law as candidates. They should be
considered resigned from their respective offices only at the start of the campaign period
when they are, by law, already considered as candidates.
6[6]


Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed
COMELEC resolution, contains two conflicting provisions. These must be harmonized or





116

reconciled to give effect to both and to arrive at a declaration that they are not ipso facto
resigned from their positions upon the filing of their CoCs.
7[7]


Petitioners further posit that the provision considering them as ipso facto resigned
from office upon the filing of their CoCs is discriminatory and violates the equal protection
clause in the Constitution.
8[8]


The Respondents Arguments

On the procedural aspect of the petition, the Office of the Solicitor General (OSG),
representing respondent COMELEC, argues that petitioners have no legal standing to
institute the suit. Petitioners have not yet filed their CoCs, hence, they are not yet affected
by the assailed provision in the COMELEC resolution. The OSG further claims that the
petition is premature or unripe for judicial determination. Petitioners have admitted that
they are merely planning to file their CoCs for the coming 2010 elections. Their interest in
the present controversy is thus merely speculative and contingent upon the filing of the
same. The OSG likewise contends that petitioners availed of the wrong remedy. They are
questioning an issuance of the COMELEC made in the exercise of the latters rule-making
power. Certiorari under Rule 65 is then an improper remedy.
9[9]


On the substantive aspect, the OSG maintains that the COMELEC did not gravely
abuse its discretion in phrasing Section 4(a) of Resolution No. 8678 for it merely copied
what is in the law. The OSG, however, agrees with petitioners that there is a conflict in
Section 13 of R.A. No. 9369 that should be resolved. According to the OSG, there seems to
be no basis to consider appointive officials as ipso facto resigned and to require them to
vacate their positions on the same day that they file their CoCs, because they are not yet
considered as candidates at that time. Further, this deemed resigned provision existed in
Batas Pambansa Bilang (B.P. Blg.) 881, and no longer finds a place in our present election
laws with the innovations brought about by the automated system.
10[10]


Our Ruling

I.









117


At first glance, the petition suffers from an incipient procedural defect. What
petitioners assail in their petition is a resolution issued by the COMELEC in the exercise of
its quasi-legislative power. Certiorari under Rule 65, in relation to Rule 64, cannot be
availed of, because it is a remedy to question decisions, resolutions and issuances made in
the exercise of a judicial or quasi-judicial function.
11[11]
Prohibition is also an inappropriate
remedy, because what petitioners actually seek from the Court is a determination of the
proper construction of a statute and a declaration of their rights thereunder. Obviously, their
petition is one for declaratory relief,
12[12]
over which this Court does not exercise original
jurisdiction.
13[13]


However, petitioners raise a challenge on the constitutionality of the questioned
provisions of both the COMELEC resolution and the law. Given this scenario, the Court
may step in and resolve the instant petition.

The transcendental nature and paramount importance of the issues raised and the
compelling state interest involved in their early resolutionthe period for the filing of CoCs
for the 2010 elections has already started and hundreds of civil servants intending to run for
elective offices are to lose their employment, thereby causing imminent and irreparable
damage to their means of livelihood and, at the same time, crippling the governments
manpowerfurther dictate that the Court must, for propriety, if only from a sense of
obligation, entertain the petition so as to expedite the adjudication of all, especially the
constitutional, issues.

In any event, the Court has ample authority to set aside errors of practice or
technicalities of procedure and resolve the merits of a case. Repeatedly stressed in our
prior decisions is the principle that the Rules were promulgated to provide guidelines for the
orderly administration of justice, not to shackle the hand that dispenses it. Otherwise, the
courts would be consigned to being mere slaves to technical rules, deprived of their judicial
discretion.
14[14]


II.










118

To put things in their proper perspective, it is imperative that we trace the brief
history of the assailed provision. Section 4(a) of COMELEC Resolution No. 8678 is a
reproduction of the second proviso in the third paragraph of Section 13 of R.A. No. 9369,
which for ready reference is quoted as follows:

For this purpose, the Commission shall set the deadline for the filing of
certificate of candidacy/petition for registration/manifestation to participate in
the election. Any person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start of the campaign
period for which he filed his certificate of candidacy: Provided, That, unlawful
acts or omissions applicable to a candidate shall take effect only upon the
start of the aforesaid campaign period: Provided, finally, That any person
holding a public appointive office or position, including active members
of the armed forces, and officers and employees in government-owned
or -controlled corporations, shall be considered ipso facto resigned
from his/her office and must vacate the same at the start of the day of
the filing of his/her certificate of candidacy.
15[15]



Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law amended
by R.A. No. 9369. The proviso was lifted from Section 66 of B.P. Blg. 881 or the Omnibus
Election Code (OEC) of the Philippines, which reads:

Sec. 66. Candidates holding appointive office or position.Any person
holding a public appointive office or position, including active members of the
Armed Forces of the Philippines, and officers and employees in government-
owned or controlled corporations, shall be considered ipso facto resigned
from his office upon the filing of his certificate of candidacy.


It may be recalledin inverse chronologythat earlier, Presidential Decree No.
1296, or the 1978 Election Code, contained a similar provision, thus

SECTION 29. Candidates holding appointive office or position.
Every person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines, and officers and employees
in government-owned or controlled corporations, shall ipso facto cease in his
office or position on the date he files his certificate of candidacy. Members of
the Cabinet shall continue in the offices they presently hold notwithstanding
the filing of certificate of candidacy, subject to the pleasure of the President of
the Philippines.





119

Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in its
Section 23 the following:

SECTION 23. Candidates Holding Appointive Office or Position.
Every person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines and every officer or
employee in government-owned or controlled corporations, shall ipso facto
cease in his office or position on the date he files his certificate of candidacy:
Provided, That the filing of a certificate of candidacy shall not affect whatever
civil, criminal or administrative liabilities which he may have incurred.

Going further back in history, R.A. No. 180, or the Revised Election Code approved
on June 21, 1947, also provided that

SECTION 26. Automatic cessation of appointive officers and
employees who are candidates. Every person holding a public appointive
office or position shall ipso facto cease in his office or position on the date he
files his certificate of candidacy.

During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled AN
ACT TO PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND VICE-
PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE OF
REPRESENTATIVES, AND APPROPRIATING THE NECESSARY FUNDS THEREFOR,
approved on January 5, 1946, contained, in the last paragraph of its Section 2, the
following:

A person occupying any civil office by appointment in the government or any
of its political subdivisions or agencies or government-owned or controlled
corporations, whether such office by appointive or elective, shall be
considered to have resigned from such office from the moment of the filing of
such certificate of candidacy.

Significantly, however, C.A. No. 666, entitled AN ACT TO PROVIDE FOR THE FIRST
ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES,
SENATORS, AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, UNDER THE
CONSTITUTION AND THE AMENDMENTS THEREOF, enacted without executive
approval on June 22, 1941, the precursor of C.A. No. 725, only provided for automatic
resignation of elective, but not appointive, officials.

Nevertheless, C.A. No. 357, or the Election Code approved on August 22, 1938,
had, in its Section 22, the same verbatim provision as Section 26 of R.A. No. 180.

The earliest recorded Philippine law on the subject is Act No. 1582, or the Election
Law enacted by the Philippine Commission in 1907, the last paragraph of Section 29 of
which reads:

Sec. 29. Penalties upon officers. x x x.

120

No public officer shall offer himself as a candidate for election, nor
shall he be eligible during the time that he holds said public office to election,
at any municipal, provincial or Assembly election, except for reelection to the
position which he may be holding, and no judge of the Court of First Instance,
justice of the peace, provincial fiscal, or officer or employee of the Bureau of
Constabulary or of the Bureau of Education shall aid any candidate or
influence in any manner or take any part in any municipal, provincial, or
Assembly election under penalty of being deprived of his office and being
disqualified to hold any public office whatever for a term of five years:
Provided, however, That the foregoing provisions shall not be construed to
deprive any person otherwise qualified of the right to vote at any election.


From this brief historical excursion, it may be gleaned that the second proviso in the
third paragraph of Section 13 of R.A. No. 9369that any person holding a public
appointive office or position, including active members of the armed forces, and officers,
and employees in government-owned or controlled corporations, shall be considered ipso
facto resigned from his/her office and must vacate the same at the start of the day of the
filing of his/her certificate of candidacytraces its roots to the period of the American
occupation.

In fact, during the deliberations of Senate Bill No. 2231, the bill later to be
consolidated with House Bill No. 5352 and enacted as R.A. No. 9369, Senator Richard
Gordon, the principal author of the bill, acknowledged that the said proviso in the proposed
legislative measure is an old provision which was merely copied from earlier existing
legislation, thus

Senator Osmea. May I just opine here and perhaps obtain the
opinion of the good Sponsor. This reads like, ANY PERSON HOLDING
[means currently] A PUBLIC APPOINTIVE POSITION SHALL BE
CONSIDERED IPSO FACTO RESIGNED [which means that the prohibition
extends only to appointive officials] INCLUDING ACTIVE MEMBERS OF
THE ARMED FORCES, OFFICERS AND EMPLOYEES This is a
prohibition, Mr. President. This means if one is chairman of SSS or PDIC, he
is deemed ipso facto resigned when he files his certificate of candidacy. Is
that the intention?

Senator Gordon. This is really an old provision, Mr. President.

Senator Osmea. It is in bold letters, so I think it was a Committee
amendment.

Senator Gordon. No, it has always been there.

Senator Osmea. I see.

Senator Gordon. I guess the intention is not to give them undue
advantage, especially certain people.

121

Senator Osmea. All right.
16[16]


In that Senate deliberation, however, Senator Miriam Defensor-Santiago expressed
her concern over the inclusion of the said provision in the new law, given that the same
would be disadvantageous and unfair to potential candidates holding appointive positions,
while it grants a consequent preferential treatment to elective officials, thus

Senator Santiago. On page 15, line 31, I know that this is a losing
cause, so I make this point more as a matter of record than of any feasible
hope that it can possibly be either accepted or if we come to a division of the
House, it will be upheld by the majority.

I am referring to page 15, line 21. The proviso begins: PROVIDED
FINALLY, THAT ANY PERSON HOLDING A PUBLIC APPOINTIVE
OFFICESHALL BE CONSIDERED IPSO FACTO RESIGNED FROM
HIS/HER OFFICE.

The point that I made during the appropriate debate in the past in this
Hall is that there is, for me, no valid reason for exempting elective officials
from this inhibition or disqualification imposed by the law. If we are going to
consider appointive officers of the government, including AFP members and
officers of government-owned and controlled corporations, or any other
member of the appointive sector of the civil service, why should it not apply to
the elective sector for, after all, even senators and congressmen are
members of the civil service as well?

Further, it is self-serving for the Senate, or for the Congress in general,
to give an exception to itself which is not available to other similarly situated
officials of government. Of course, the answer is, the reason why we are
special is that we are elected. Since we are imposing a disqualification on all
other government officials except ourselves, I think, it is the better part of
delicadeza to inhibit ourselves as well, so that if we want to stay as senators,
we wait until our term expires. But if we want to run for some other elective
office during our term, then we have to be considered resigned just like
everybody else. That is my proposed amendment. But if it is unacceptable to
the distinguished Sponsor, because of sensitivity to the convictions of the rest
of our colleagues, I will understand.

Senator Gordon. Mr. President, I think the suggestion is well-thought
of. It is a good policy. However, this is something that is already in the old
law which was upheld by the Supreme court in a recent case that the rider
was not upheld and that it was valid.
17[17]





122



The obvious inequality brought about by the provision on automatic resignation of
appointive civil servants must have been the reason why Senator Recto proposed the
inclusion of the following during the period of amendments: ANY PERSON WHO FILES
HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD SHALL ONLY BE
CONSIDERED AS A CANDIDATE AT THE START OF THE CAMPAIGN PERIOD FOR
WHICH HE FILED HIS COC.
18[18]
The said proviso seems to mitigate the situation of
disadvantage afflicting appointive officials by considering persons who filed their CoCs as
candidates only at the start of the campaign period, thereby, conveying the tacit intent that
persons holding appointive positions will only be considered as resigned at the start of the
campaign period when they are already treated by law as candidates.

Parenthetically, it may be remembered that Section 67 of the OEC and Section 11 of
R.A. No. 8436 contained a similar provision on automatic resignation of elective officials
upon the filing of their CoCs for any office other than that which they hold in a permanent
capacity or for President or Vice-President. However, with the enactment of R.A. No. 9006,
or the Fair Election Act,
19[19]
in 2001, this provision was repealed by Section 14
20[20]
of the
said act. There was, thus, created a situation of obvious discrimination against appointive
officials who were deemed ipso facto resigned from their offices upon the filing of their
CoCs, while elective officials were not.

This situation was incidentally addressed by the Court in Farias v. The Executive
Secretary
21[21]
when it ruled that

Section 14 of Rep. Act No. 9006
Is Not Violative of the Equal
Protection Clause of the Constitution

The petitioners contention, that the repeal of Section 67 of the
Omnibus Election Code pertaining to elective officials gives undue benefit to










123

such officials as against the appointive ones and violates the equal protection
clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not
absolute, but is subject to reasonable classification. If the groupings are
characterized by substantial distinctions that make real differences, one class
may be treated and regulated differently from the other. The Court has
explained the nature of the equal protection guarantee in this manner:

The equal protection of the law clause is against undue
favor and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not intended
to prohibit legislation which is limited either in the object to
which it is directed or by territory within which it is to operate. It
does not demand absolute equality among residents; it merely
requires that all persons shall be treated alike, under like
circumstances and conditions both as to privileges conferred
and liabilities enforced. The equal protection clause is not
infringed by legislation which applies only to those persons
falling within a specified class, if it applies alike to all persons
within such class, and reasonable grounds exist for making a
distinction between those who fall within such class and those
who do not.

Substantial distinctions clearly exist between elective officials and
appointive officials. The former occupy their office by virtue of the mandate of
the electorate. They are elected to an office for a definite term and may be
removed therefrom only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of tenure while others serve at
the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that
under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission,
Book V of the Administrative Code of 1987 (Executive Order No. 292),
appointive officials, as officers and employees in the civil service, are strictly
prohibited from engaging in any partisan political activity or take part in any
election except to vote. Under the same provision, elective officials, or
officers or employees holding political offices, are obviously expressly allowed
to take part in political and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus
Election Code, the legislators deemed it proper to treat these two classes of
officials differently with respect to the effect on their tenure in the office of the
filing of the certificates of candidacy for any position other than those
occupied by them. Again, it is not within the power of the Court to pass upon
or look into the wisdom of this classification.

124

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e.,
elected officials vis-a-vis appointive officials, is anchored upon material and
significant distinctions and all the persons belonging under the same
classification are similarly treated, the equal protection clause of the
Constitution is, thus, not infringed.
22[22]



However, it must be remembered that the Court, in Farias, was intently focused on
the main issue of whether the repealing clause in the Fair Election Act was a
constitutionally proscribed rider, in that it unwittingly failed to ascertain with stricter scrutiny
the impact of the retention of the provision on automatic resignation of persons holding
appointive positions (Section 66) in the OEC, vis--vis the equal protection clause.
Moreover, the Courts vision in Farias was shrouded by the fact that petitioners therein,
Farias et al., never posed a direct challenge to the constitutionality of Section 66 of the
OEC. Farias et al. rather merely questioned, on constitutional grounds, the repealing
clause, or Section 14 of the Fair Election Act. The Courts afore-quoted declaration in
Farias may then very well be considered as an obiter dictum.

III.

The instant case presents a rare opportunity for the Court, in view of the
constitutional challenge advanced by petitioners, once and for all, to settle the issue of
whether the second proviso in the third paragraph of Section 13 of R.A. No. 9369, a
reproduction of Section 66 of the OEC, which, as shown above, was based on provisions
dating back to the American occupation, is violative of the equal protection clause.

But before delving into the constitutional issue, we shall first address the issues on
legal standing and on the existence of an actual controversy.

Central to the determination of locus standi is the question of whether a party has
alleged such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.
23[23]
In this case, petitioners
allege that they will be directly affected by COMELEC Resolution No. 8678 for they intend,
and they all have the qualifications, to run in the 2010 elections. The OSG, for its part,
contends that since petitioners have not yet filed their CoCs, they are not yet candidates;
hence, they are not yet directly affected by the assailed provision in the COMELEC
resolution.






125

The Court, nevertheless, finds that, while petitioners are not yet candidates, they
have the standing to raise the constitutional challenge, simply because they are qualified
voters. A restriction on candidacy, such as the challenged measure herein, affects the
rights of voters to choose their public officials. The rights of voters and the rights of
candidates do not lend themselves to neat separation; laws that affect candidates always
have at least some theoretical, correlative effect on voters.
24[24]
The Court believes that
both candidates and voters may challenge, on grounds of equal protection, the assailed
measure because of its impact on voting rights.
25[25]


In any event, in recent cases, this Court has relaxed the stringent direct injury test
and has observed a liberal policy allowing ordinary citizens, members of Congress, and
civil organizations to prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.
26[26]


We have also stressed in our prior decisions that the exercise by this Court of
judicial power is limited to the determination and resolution of actual cases and
controversies.
27[27]
The Court, in this case, finds that an actual case or controversy exists
between the petitioners and the COMELEC, the body charged with the enforcement and
administration of all election laws. Petitioners have alleged in a precise manner that they
would engage in the very acts that would trigger the enforcement of the provisionthey
would file their CoCs and run in the 2010 elections. Given that the assailed provision
provides for ipso facto resignation upon the filing of the CoC, it cannot be said that it
presents only a speculative or hypothetical obstacle to petitioners candidacy.
28[28]


IV.

Having hurdled what the OSG posed as obstacles to judicial review, the Court now
delves into the constitutional challenge.












126

It is noteworthy to point out that the right to run for public office touches on two
fundamental freedoms, those of expression and of association. This premise is best
explained in Mancuso v. Taft,
29[29]
viz.:

Freedom of expression guarantees to the individual the opportunity to
write a letter to the local newspaper, speak out in a public park, distribute
handbills advocating radical reform, or picket an official building to seek
redress of grievances. All of these activities are protected by the First
Amendment if done in a manner consistent with a narrowly defined concept of
public order and safety. The choice of means will likely depend on the amount
of time and energy the individual wishes to expend and on his perception as
to the most effective method of projecting his message to the public. But
interest and commitment are evolving phenomena. What is an effective
means for protest at one point in time may not seem so effective at a later
date. The dilettante who participates in a picket line may decide to devote
additional time and resources to his expressive activity. As his commitment
increases, the means of effective expression changes, but the expressive
quality remains constant. He may decide to lead the picket line, or to publish
the newspaper. At one point in time he may decide that the most effective
way to give expression to his views and to get the attention of an appropriate
audience is to become a candidate for public office-means generally
considered among the most appropriate for those desiring to effect change in
our governmental systems. He may seek to become a candidate by filing in a
general election as an independent or by seeking the nomination of a political
party. And in the latter instance, the individual's expressive activity has two
dimensions: besides urging that his views be the views of the elected public
official, he is also attempting to become a spokesman for a political party
whose substantive program extends beyond the particular office in question.
But Cranston has said that a certain type of its citizenry, the public employee,
may not become a candidate and may not engage in any campaign activity
that promotes himself as a candidate for public office. Thus the city has stifled
what may be the most important expression an individual can summon,
namely that which he would be willing to effectuate, by means of concrete
public action, were he to be selected by the voters.

It is impossible to ignore the additional fact that the right to run for
office also affects the freedom to associate. In Williams v. Rhodes, supra, the
Court used strict review to invalidate an Ohio election system that made it
virtually impossible for third parties to secure a place on the ballot. The Court
found that the First Amendment protected the freedom to associate by
forming and promoting a political party and that that freedom was infringed
when the state effectively denied a party access to its electoral machinery.
The Cranston charter provision before us also affects associational rights,
albeit in a slightly different way. An individual may decide to join or participate



127

in an organization or political party that shares his beliefs. He may even form
a new group to forward his ideas. And at some juncture his supporters and
fellow party members may decide that he is the ideal person to carry the
group's standard into the electoral fray. To thus restrict the options available
to political organization as the Cranston charter provision has done is to limit
the effectiveness of association; and the freedom to associate is intimately
related with the concept of making expression effective. Party access to the
ballot becomes less meaningful if some of those selected by party machinery
to carry the party's programs to the people are precluded from doing so
because those nominees are civil servants.

Whether the right to run for office is looked at from the point of view of
individual expression or associational effectiveness, wide opportunities exist
for the individual who seeks public office. The fact of candidacy alone may
open previously closed doors of the media. The candidate may be invited to
discuss his views on radio talk shows; he may be able to secure equal time
on television to elaborate his campaign program; the newspapers may cover
his candidacy; he may be invited to debate before various groups that had
theretofore never heard of him or his views. In short, the fact of candidacy
opens up a variety of communicative possibilities that are not available to
even the most diligent of picketers or the most loyal of party followers. A view
today, that running for public office is not an interest protected by the First
Amendment, seems to us an outlook stemming from an earlier era when
public office was the preserve of the professional and the wealthy.
Consequently we hold that candidacy is both a protected First Amendment
right and a fundamental interest. Hence any legislative classification that
significantly burdens that interest must be subjected to strict equal protection
review.
30[30]



Here, petitioners interest in running for public office, an interest protected by
Sections 4 and 8 of Article III of the Constitution, is breached by the proviso in Section 13 of
R.A. No. 9369. It is now the opportune time for the Court to strike down the said proviso for
being violative of the equal protection clause and for being overbroad.

In considering persons holding appointive positions as ipso facto resigned from their
posts upon the filing of their CoCs, but not considering as resigned all other civil servants,
specifically the elective ones, the law unduly discriminates against the first class. The fact
alone that there is substantial distinction between those who hold appointive positions and
those occupying elective posts, does not justify such differential treatment.

In order that there can be valid classification so that a discriminatory governmental
act may pass the constitutional norm of equal protection, it is necessary that the four (4)
requisites of valid classification be complied with, namely:



128


(1) It must be based upon substantial distinctions;
(2) It must be germane to the purposes of the law;
(3) It must not be limited to existing conditions only; and
(4) It must apply equally to all members of the class.

The first requirement means that there must be real and substantial differences
between the classes treated differently. As illustrated in the fairly recent Mirasol v.
Department of Public Works and Highways,
31[31]
a real and substantial distinction exists
between a motorcycle and other motor vehicles sufficient to justify its classification among
those prohibited from plying the toll ways. Not all motorized vehicles are created equala
two-wheeled vehicle is less stable and more easily overturned than a four-wheel vehicle.

Nevertheless, the classification would still be invalid if it does not comply with the
second requirementif it is not germane to the purpose of the law. Justice Isagani A. Cruz
(Ret.), in his treatise on constitutional law, explains,

The classification, even if based on substantial distinctions, will still be
invalid if it is not germane to the purpose of the law. To illustrate, the
accepted difference in physical stamina between men and women will justify
the prohibition of the latter from employment as miners or stevedores or in
other heavy and strenuous work. On the basis of this same classification,
however, the law cannot provide for a lower passing average for women in
the bar examinations because physical strength is not the test for admission
to the legal profession. Imported cars may be taxed at a higher rate than
locally assembled automobiles for the protection of the national economy, but
their difference in origin is no justification for treating them differently when it
comes to punishing violations of traffic regulations. The source of the vehicle
has no relation to the observance of these rules.
32[32]



The third requirement means that the classification must be enforced not only for the
present but as long as the problem sought to be corrected continues to exist. And, under
the last requirement, the classification would be regarded as invalid if all the members of
the class are not treated similarly, both as to rights conferred and obligations imposed.
33[33]









129

Applying the four requisites to the instant case, the Court finds that the differential
treatment of persons holding appointive offices as opposed to those holding elective ones
is not germane to the purposes of the law.

The obvious reason for the challenged provision is to prevent the use of a
governmental position to promote ones candidacy, or even to wield a dangerous or
coercive influence on the electorate. The measure is further aimed at promoting the
efficiency, integrity, and discipline of the public service by eliminating the danger that the
discharge of official duty would be motivated by political considerations rather than the
welfare of the public.
34[34]
The restriction is also justified by the proposition that the entry of
civil servants to the electoral arena, while still in office, could result in neglect or inefficiency
in the performance of duty because they would be attending to their campaign rather than
to their office work.

If we accept these as the underlying objectives of the law, then the assailed
provision cannot be constitutionally rescued on the ground of valid classification. Glaringly
absent is the requisite that the classification must be germane to the purposes of the law.
Indeed, whether one holds an appointive office or an elective one, the evils sought to be
prevented by the measure remain. For example, the Executive Secretary, or any Member
of the Cabinet for that matter, could wield the same influence as the Vice-President who at
the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents
were appointed to take charge of national housing, social welfare development, interior and
local government, and foreign affairs). With the fact that they both head executive offices,
there is no valid justification to treat them differently when both file their CoCs for the
elections. Under the present state of our law, the Vice-President, in the example, running
this time, let us say, for President, retains his position during the entire election period and
can still use the resources of his office to support his campaign.

As to the danger of neglect, inefficiency or partisanship in the discharge of the
functions of his appointive office, the inverse could be just as true and compelling. The
public officer who files his certificate of candidacy would be driven by a greater impetus for
excellent performance to show his fitness for the position aspired for.

Mancuso v. Taft,
35[35]
cited above, explains that the measure on automatic
resignation, which restricts the rights of civil servants to run for officea right inextricably
linked to their freedom of expression and association, is not reasonably necessary to the
satisfaction of the state interest. Thus, in striking down a similar measure in the United
States, Mancuso succinctly declares






130

In proceeding to the second stage of active equal protection review,
however, we do see some contemporary relevance of the Mitchell decision.
National Ass'n of Letter Carriers, supra. In order for the Cranston charter
provision to withstand strict scrutiny, the city must show that the exclusion of
all government employees from candidacy is necessary to achieve a
compelling state interest. And, as stated in Mitchell and other cases dealing
with similar statutes, see Wisconsin State Employees, supra; Broadrick,
supra, government at all levels has a substantial interest in protecting the
integrity of its civil service. It is obviously conceivable that the impartial
character of the civil service would be seriously jeopardized if people in
positions of authority used their discretion to forward their electoral ambitions
rather than the public welfare. Similarly if a public employee pressured other
fellow employees to engage in corrupt practices in return for promises of post-
election reward, or if an employee invoked the power of the office he was
seeking to extract special favors from his superiors, the civil service would be
done irreparable injury. Conversely, members of the public, fellow-employees,
or supervisors might themselves request favors from the candidate or might
improperly adjust their own official behavior towards him. Even if none of
these abuses actually materialize, the possibility of their occurrence might
seriously erode the public's confidence in its public employees. For the
reputation of impartiality is probably as crucial as the impartiality itself; the
knowledge that a clerk in the assessor's office who is running for the local
zoning board has access to confidential files which could provide pressure
points for furthering his campaign is destructive regardless of whether the
clerk actually takes advantage of his opportunities. For all of these reasons
we find that the state indeed has a compelling interest in maintaining the
honesty and impartiality of its public work force.

We do not, however, consider the exclusionary measure taken by
Cranston-a flat prohibition on office-seeking of all kinds by all kinds of public
employees-as even reasonably necessary to satisfaction of this state interest.
As Justice Marshall pointed out in Dunn v. Blumstein, [s]tatutes affecting
constitutional rights must be drawn with precision. For three sets of reasons
we conclude that the Cranston charter provision pursues its objective in a far
too heavy-handed manner and hence must fall under the equal protection
clause. First, we think the nature of the regulation-a broad prophylactic rule-
may be unnecessary to fulfillment of the city's objective. Second, even
granting some sort of prophylactic rule may be required, the provision here
prohibits candidacies for all types of public office, including many which would
pose none of the problems at which the law is aimed. Third, the provision
excludes the candidacies of all types of public employees, without any
attempt to limit exclusion to those employees whose positions make them
vulnerable to corruption and conflicts of interest.


There is thus no valid justification to treat appointive officials differently from the
elective ones. The classification simply fails to meet the test that it should be germane to
the purposes of the law. The measure encapsulated in the second proviso of the third
131

paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the OEC violates the equal
protection clause.

V.

The challenged provision also suffers from the infirmity of being overbroad.

First, the provision pertains to all civil servants holding appointive posts without
distinction as to whether they occupy high positions in government or not. Certainly, a utility
worker in the government will also be considered as ipso facto resigned once he files his
CoC for the 2010 elections. This scenario is absurd for, indeed, it is unimaginable how he
can use his position in the government to wield influence in the political world.

While it may be admitted that most appointive officials who seek public elective
office are those who occupy relatively high positions in government, laws cannot be
legislated for them alone, or with them alone in mind. For the right to seek public elective
office is universal, open and unrestrained, subject only to the qualification standards
prescribed in the Constitution and in the laws. These qualifications are, as we all know,
general and basic so as to allow the widest participation of the citizenry and to give free
rein for the pursuit of ones highest aspirations to public office. Such is the essence of
democracy.

Second, the provision is directed to the activity of seeking any and all public offices,
whether they be partisan or nonpartisan in character, whether they be in the national,
municipal or barangay level. Congress has not shown a compelling state interest to restrict
the fundamental right involved on such a sweeping scale.
36[36]


Specific evils require specific treatments, not through overly broad measures that
unduly restrict guaranteed freedoms of the citizenry. After all, sovereignty resides in the
people, and all governmental power emanates from them.

Mancuso v. Taft,
37[37]
on this point, instructs

As to approaches less restrictive than a prophylactic rule, there exists
the device of the leave of absence. Some system of leaves of absence would
permit the public employee to take time off to pursue his candidacy while
assuring him his old job should his candidacy be unsuccessful. Moreover, a
leave of absence policy would eliminate many of the opportunities for
engaging in the questionable practices that the statute is designed to prevent.
While campaigning, the candidate would feel no conflict between his desire





132

for election and his publicly entrusted discretion, nor any conflict between his
efforts to persuade the public and his access to confidential documents. But
instead of adopting a reasonable leave of absence policy, Cranston has
chosen a provision that makes the public employee cast off the security of
hard-won public employment should he desire to compete for elected office.

The city might also promote its interest in the integrity of the civil
service by enforcing, through dismissal, discipline, or criminal prosecution,
rules or statutes that treat conflict of interests, bribery, or other forms of
official corruption. By thus attacking the problem directly, instead of using a
broad prophylactic rule, the city could pursue its objective without unduly
burdening the First Amendment rights of its employees and the voting rights
of its citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an
analogous question when the State of Tennessee asserted that the interest of
ballot box purity justified its imposition of one year and three month
residency requirements before a citizen could vote. Justice Marshall stated,
inter alia, that Tennessee had available a number of criminal statutes that
could be used to punish voter fraud without unnecessary infringement on the
newcomer's right to vote. Similarly, it appears from the record in this case that
the Cranston charter contains some provisions that might be used against
opportunistic public employees.

Even if some sort of prophylactic rule is necessary, we cannot say that
Cranston has put much effort into tailoring a narrow provision that attempts to
match the prohibition with the problem. The charter forbids a Cranston public
employee from running for any office, anywhere. The prohibition is not limited
to the local offices of Cranston, but rather extends to statewide offices and
even to national offices. It is difficult for us to see that a public employee
running for the United States Congress poses quite the same threat to the
civil service as would the same employee if he were running for a local office
where the contacts and information provided by his job related directly to the
position he was seeking, and hence where the potential for various abuses
was greater. Nor does the Cranston charter except the public employee who
works in Cranston but aspires to office in another local jurisdiction, most
probably his town of residence. Here again the charter precludes candidacies
which can pose only a remote threat to the civil service. Finally, the charter
does not limit its prohibition to partisan office-seeking, but sterilizes also those
public employees who would seek nonpartisan elective office. The statute
reviewed in Mitchell was limited to partisan political activity, and since that
time other courts have found the partisan-nonpartisan distinction a material
one. See Kinnear, supra; Wisconsin State Employees, supra; Gray v. Toledo,
supra. While the line between nonpartisan and partisan can often be blurred
by systems whose true characters are disguised by the names given them by
their architects, it seems clear that the concerns of a truly partisan office and
the temptations it fosters are sufficiently different from those involved in an
office removed from regular party politics to warrant distinctive treatment in a
charter of this sort.

133

The third and last area of excessive and overinclusive coverage of the
Cranston charter relates not to the type of office sought, but to the type of
employee seeking the office. As Justice Douglas pointed out in his dissent in
Mitchell, 330 U.S. at 120-126, 67 S.Ct. 556, restrictions on administrative
employees who either participate in decision-making or at least have some
access to information concerning policy matters are much more justifiable
than restrictions on industrial employees, who, but for the fact that the
government owns the plant they work in, are, for purposes of access to official
information, identically situated to all other industrial workers. Thus, a worker
in the Philadelphia mint could be distinguished from a secretary in an office of
the Department of Agriculture; so also could a janitor in the public schools of
Cranston be distinguished from an assistant comptroller of the same city. A
second line of distinction that focuses on the type of employee is illustrated by
the cases of Kinnear and Minielly, supra. In both of these cases a civil service
deputy decided to run for the elected office of sheriff. The courts in both cases
felt that the no-candidacy laws in question were much too broad and indicated
that perhaps the only situation sensitive enough to justify a flat rule was one
in which an inferior in a public office electorally challenged his immediate
superior. Given all these considerations, we think Cranston has not given
adequate attention to the problem of narrowing the terms of its charter to deal
with the specific kinds of conflict-of-interest problems it seeks to avoid.

We also do not find convincing the arguments that after-hours
campaigning will drain the energy of the public employee to the extent that he
is incapable of performing his job effectively and that inevitable on-the-job
campaigning and discussion of his candidacy will disrupt the work of others.
Although it is indisputable that the city has a compelling interest in the
performance of official work, the exclusion is not well-tailored to effectuate
that interest. Presumably the city could fire the individual if he clearly shirks
his employment responsibilities or disrupts the work of others. Also, the
efficiency rationale common to both arguments is significantly underinclusive.
It applies equally well to a number of non-political, extracurricular activities
that are not prohibited by the Cranston charter. Finally, the connection
between after-hours campaigning and the state interest seems tenuous; in
many cases a public employee would be able to campaign aggressively and
still continue to do his job well.
38[38]



Incidentally, Clements v. Fashing
39[39]
sustained as constitutional a provision on the
automatic resignation of District Clerks, County Clerks, County Judges, County Treasurers,





134

Criminal District Attorneys, County Surveyors, Inspectors of Hides and Animals, County
Commissioners, Justices of the Peace, Sheriffs, Assessors and Collectors of Taxes, District
Attorneys, County Attorneys, Public Weighers, and Constables if they announce their
candidacy or if they become candidates in any general, special or primary election.

In Clements, it may be readily observed that a provision treating differently particular
officials, as distinguished from all others, under a classification that is germane to the
purposes of the law, merits the stamp of approval from American courts. Not, however, a
general and sweeping provision, and more so one violative of the second requisite for a
valid classification, which is on its face unconstitutional.

On a final note, it may not be amiss to state that the Americans, from whom we
copied the provision in question, had already stricken down a similar measure for being
unconstitutional. It is high-time that we, too, should follow suit and, thus, uphold
fundamental liberties over age-old, but barren, restrictions to such freedoms.

WHEREFORE, premises considered, the petition is GRANTED. The second proviso
in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus
Election Code and Section 4(a) of COMELEC Resolution No. 8678 are declared as
UNCONSTITUTIONAL.


SO ORDERED.
EN BANC
G.R. No. 192935 : December 7, 2010
LOUIS BAROK C. BIRAOGO, Petitioner, v. THE PHILIPPINE TRUTH COMMISSION OF 2010,
Respondent.

G.R. No. 193036 : December 7, 2010
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG,
and REP. ORLANDO B. FUA, SR., Petitioners, v. EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR. and DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO B. ABAD,
Respondents.
D E C I S I O N
Abad, J .
When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over
the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts
the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual controversy the rights which
that instrument secures and guarantees to them.
--- Justice Jose P. Laurel[1]
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The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental
powers of government are established, limited and defined, and by which these powers are distributed
among the several departments.[2] The Constitution is the basic and paramount law to which all other
laws must conform and to which all persons, including the highest officials of the land, must defer.[3]
Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be
simply made to sway and accommodate the call of situations and much more tailor itself to the whims
and caprices of government and the people who run it.[4]
For consideration before the Court are two consolidated cases[5] both of which essentially assail the
validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled Creating the
Philippine Truth Commission of 2010.
The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis
Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for
being violative of the legislative power of Congress under Section 1, Article VI of the Constitution[6] as it
usurps the constitutional authority of the legislature to create a public office and to appropriate funds
therefor.[7]
The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by
petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr.
(petitioners-legislators) as incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections,
when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and
corruption with his slogan, Kung walang corrupt, walang mahirap. The Filipino people, convinced of his
sincerity and of his ability to carry out this noble objective, catapulted the good senator to the
presidency.
To transform his campaign slogan into reality, President Aquino found a need for a special body to
investigate reported cases of graft and corruption allegedly committed during the previous
administration.
Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1
establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the
principle that a public office is a public trust and mandates that public officers and employees, who are
servants of the people, must at all times be accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious
violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social
life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized
and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the peoples
trust and confidence in the Government and its institutions;
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WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large
scale graft and corruption in the government and to put a closure to them by the filing of the appropriate
cases against those involved, if warranted, and to deter others from committing the evil, restore the
peoples faith and confidence in the Government and in their public servants;
WHEREAS, the Presidents battlecry during his campaign for the Presidency in the last elections kung
walang corrupt, walang mahirap expresses a solemn pledge that if elected, he would end corruption
and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the
truth concerning the reported cases of graft and corruption during the previous administration, and which
will recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the
Revised Administrative Code of the Philippines, gives the President the continuing authority to
reorganize the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by
virtue of the powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the COMMISSION, which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members who will act as an
independent collegial body.
SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred
to in Section 1, involving third level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration and thereafter submit its
finding and recommendations to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will investigate;
b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to this end require any agency, official or employee of
the Executive Branch, including government-owned or controlled corporations, to produce documents,
books, records and other papers;
c) Upon proper request or representation, obtain information and documents from the Senate and the
House of Representatives records of investigations conducted by committees thereof relating to matters
or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from the courts, including the
Sandiganbayan and the Office of the Court Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;
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e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or
affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the
ends of justice be fully served, that such person who qualifies as a state witness under the Revised
Rules of Court of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities,
by means of a special or interim report and recommendation, all evidence on corruption of public officers
and employees and their private sector co-principals, accomplices or accessories, if any, when in the
course of its investigation the Commission finds that there is reasonable ground to believe that they are
liable for graft and corruption under pertinent applicable laws;
h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or
any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and
cooperation as it may require in the discharge of its functions and duties;
i) Engage or contract the services of resource persons, professionals and other personnel determined by
it as necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary in connection with the
objectives and purposes of this Order.
SECTION 3. Staffing Requirements. x x x.
SECTION 4. Detail of Employees. x x x.
SECTION 5. Engagement of Experts. x x x
SECTION 6. Conduct of Proceedings. x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. x x x.
SECTION 8. Protection of Witnesses/Resource Persons. x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government official or
personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give testimony or produce
documents for inspection, when required, shall be subject to administrative disciplinary action. Any
private person who does the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. x x x.
SECTION 11. Budget for the Commission. The Office of the President shall provide the necessary
funds for the Commission to ensure that it can exercise its powers, execute its functions, and perform its
duties and responsibilities as effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. x x x.
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SECTION 13. Furniture/Equipment. x x x.
SECTION 14. Term of the Commission. The Commission shall accomplish its mission on or before
December 31, 2012.
SECTION 15. Publication of Final Report. x x x.
SECTION 16. Transfer of Records and Facilities of the Commission. x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President
there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same
shall not affect the validity and effectivity of the other provisions hereof.
SECTION 19. Effectivity. This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a mere
ad hoc body formed under the Office of the President with the primary task to investigate reports of graft
and corruption committed by third-level public officers and employees, their co-principals, accomplices
and accessories during the previous administration, and thereafter to submit its finding and
recommendations to the President, Congress and the Ombudsman. Though it has been described as an
independent collegial body, it is essentially an entity within the Office of the President Proper and
subject to his control. Doubtless, it constitutes a public office, as an ad hoc body is one.[8]
To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasi-judicial body as it
cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending parties. All
it can do is gather, collect and assess evidence of graft and corruption and make recommendations. It
may have subpoena powers but it has no power to cite people in contempt, much less order their arrest.
Although it is a fact-finding body, it cannot determine from such facts if probable cause exists as to
warrant the filing of an information in our courts of law. Needless to state, it cannot impose criminal, civil
or administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries which have been created as official,
transitory and non-judicial fact-finding bodies to establish the facts and context of serious violations of
human rights or of international humanitarian law in a countrys past.[9] They are usually established by
states emerging from periods of internal unrest, civil strife or authoritarianism to serve as mechanisms
for transitional justice.
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Truth commissions have been described as bodies that share the following characteristics: (1) they
examine only past events; (2) they investigate patterns of abuse committed over a period of time, as
opposed to a particular event; (3) they are temporary bodies that finish their work with the submission of
a report containing conclusions and recommendations; and (4) they are officially sanctioned, authorized
or empowered by the State.[10] Commissions members are usually empowered to conduct research,
support victims, and propose policy recommendations to prevent recurrence of crimes. Through their
investigations, the commissions may aim to discover and learn more about past abuses, or formally
acknowledge them. They may aim to prepare the way for prosecutions and recommend institutional
reforms.[11]
Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime
tribunals are examples of a retributory or vindicatory body set up to try and punish those responsible for
crimes against humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation Commission
of South Africa, the principal function of which was to heal the wounds of past violence and to prevent
future conflict by providing a cathartic experience for victims.
The PTC is a far cry from South Africas model. The latter placed more emphasis on reconciliation than
on judicial retribution, while the marching order of the PTC is the identification and punishment of
perpetrators. As one writer[12] puts it:
The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural
speech: To those who talk about reconciliation, if they mean that they would like us to simply forget
about the wrongs that they have committed in the past, we have this to say: There can be no
reconciliation without justice. When we allow crimes to go unpunished, we give consent to their
occurring over and over again.
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it
unconstitutional and to enjoin the PTC from performing its functions. A perusal of the arguments of the
petitioners in both cases shows that they are essentially the same. The petitioners-legislators
summarized them in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a
public office and appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot
legitimize E.O. No. 1 because the delegated authority of the President to structurally reorganize the
Office of the President to achieve economy, simplicity and efficiency does not include the power to
create an entirely new public office which was hitherto inexistent like the Truth Commission.
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the Truth
Commission with quasi-judicial powers duplicating, if not superseding, those of the Office of the
Ombudsman created under the 1987 Constitution and the Department of Justice created under the
Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and
prosecution officials and personnel of the previous administration as if corruption is their peculiar species
even as it excludes those of the other administrations, past and present, who may be indictable.
(e) The creation of the Philippine Truth Commission of 2010 violates the consistent and general
international practice of four decades wherein States constitute truth commissions to exclusively
investigate human rights violations, which customary practice forms part of the generally accepted
140

principles of international law which the Philippines is mandated to adhere to pursuant to the Declaration
of Principles enshrined in the Constitution.
(f) The creation of the Truth Commission is an exercise in futility, an adventure in partisan hostility, a
launching pad for trial/conviction by publicity and a mere populist propaganda to mistakenly impress the
people that widespread poverty will altogether vanish if corruption is eliminated without even addressing
the other major causes of poverty.
(g) The mere fact that previous commissions were not constitutionally challenged is of no moment
because neither laches nor estoppel can bar an eventual question on the constitutionality and validity of
an executive issuance or even a statute.[13]
In their Consolidated Comment,[14] the respondents, through the Office of the Solicitor General (OSG),
essentially questioned the legal standing of petitioners and defended the assailed executive order with
the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the Presidents
executive power and power of control necessarily include the inherent power to conduct investigations to
ensure that laws are faithfully executed and that, in any event, the Constitution, Revised Administrative
Code of 1987 (E.O. No. 292), [15] Presidential Decree (P.D.) No. 1416[16] (as amended by P.D. No.
1772), R.A. No. 9970,[17] and settled jurisprudence that authorize the President to create or form such
bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no
appropriation but a mere allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions of the Office of the Ombudsman
(Ombudsman) and the Department of Justice (DOJ), because it is a fact-finding body and not a quasi-
judicial body and its functions do not duplicate, supplant or erode the latters jurisdiction.
4] The Truth Commission does not violate the equal protection clause because it was validly created for
laudable purposes.
The OSG then points to the continued existence and validity of other executive orders and presidential
issuances creating similar bodies to justify the creation of the PTC such as Presidential Complaint and
Action Commission (PCAC) by President Ramon B. Magsaysay, Presidential Committee on
Administrative Performance Efficiency (PCAPE) by President Carlos P. Garcia and Presidential Agency
on Reform and Government Operations (PARGO) by President Ferdinand E. Marcos.[18]
From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues to be
resolved:
1. Whether or not the petitioners have the legal standing to file their respective petitions and question
Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of separation of powers by usurping the
powers of Congress to create and to appropriate funds for public offices, agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
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Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court needs
to ascertain whether the requisites for a valid exercise of its power of judicial review are present.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations,
to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the
person challenging the act must have the standing to question the validity of the subject act or issuance;
otherwise stated, he must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality
must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota
of the case.[19]
Among all these limitations, only the legal standing of the petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to
demonstrate their personal stake in the outcome of the case. It argues that the petitioners have not
shown that they have sustained or are in danger of sustaining any personal injury attributable to the
creation of the PTC. Not claiming to be the subject of the commissions investigations, petitioners will not
sustain injury in its creation or as a result of its proceedings.[20]
The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators to
assail Executive Order No. 1. Evidently, their petition primarily invokes usurpation of the power of the
Congress as a body to which they belong as members. This certainly justifies their resolve to take the
cudgels for Congress as an institution and present the complaints on the usurpation of their power and
rights as members of the legislature before the Court. As held in Philippine Constitution Association v.
Enriquez,[21]
To the extent the powers of Congress are impaired, so is the power of each member thereof, since his
office confers a right to participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a member of Congress. In such a case, any member of
Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges vested
by the Constitution in their office remain inviolate. Thus, they are allowed to question the validity of any
official action which, to their mind, infringes on their prerogatives as legislators.[22]
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the creation
of the PTC and the budget for its operations.[23] It emphasizes that the funds to be used for the creation
and operation of the commission are to be taken from those funds already appropriated by Congress.
Thus, the allocation and disbursement of funds for the commission will not entail congressional action
but will simply be an exercise of the Presidents power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of
sustaining, any personal and direct injury attributable to the implementation of Executive Order No. 1.
Nowhere in his petition is an assertion of a clear right that may justify his clamor for the Court to exercise
judicial power and to wield the axe over presidential issuances in defense of the Constitution. The case
of David v. Arroyo[24] explained the deep-seated rules on locus standi. Thus:
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Locus standi is defined as a right of appearance in a court of justice on a given question. In private
suits, standing is governed by the real-parties-in interest rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that every action must be prosecuted or
defended in the name of the real party in interest. Accordingly, the real-party-in interest is the party
who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the
suit. Succinctly put, the plaintiffs standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a public
right in assailing an allegedly illegal official action, does so as a representative of the general public. He
may be a person who is affected no differently from any other person. He could be suing as a stranger,
or in the category of a citizen, or taxpayer. In either case, he has to adequately show that he is
entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a citizen or taxpayer.
Case law in most jurisdictions now allows both citizen and taxpayer standing in public actions. The
distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayers
suit is in a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by
the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern.
As held by the New York Supreme Court in People ex rel Case v. Collins: In matter of mere public right,
howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to
interfere and see that a public offence be properly pursued and punished, and that a public grievance be
remedied. With respect to taxpayers suits, Terr v. Jordan held that the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied.
However, to prevent just about any person from seeking judicial interference in any official policy or act
with which he disagreed with, and thus hinders the activities of governmental agencies engaged in
public service, the United State Supreme Court laid down the more stringent direct injury test in Ex
Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private individual to
invoke the judicial power to determine the validity of an executive or legislative action, he must show that
he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general
interest common to all members of the public.
This Court adopted the direct injury test in our jurisdiction. In People v. Vera, it held that the person
who impugns the validity of a statute must have a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result. The Vera doctrine was upheld in a litany of
cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers Association v. De la
Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix.
[Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that the rule on standing is a matter of procedure,
hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when
the public interest so requires, such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest.[25]
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,[26] the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirements may be
relaxed and a suit may be allowed to prosper even where there is no direct injury to the party claiming
the right of judicial review. In the first Emergency Powers Cases,[27] ordinary citizens and taxpayers
were allowed to question the constitutionality of several executive orders although they had only an
indirect and general interest shared in common with the public.
The OSG claims that the determinants of transcendental importance[28] laid down in CREBA v. ERC
and Meralco[29] are non-existent in this case. The Court, however, finds reason in Biraogos assertion
that the petition covers matters of transcendental importance to justify the exercise of jurisdiction by the
Court. There are constitutional issues in the petition which deserve the attention of this Court in view of
143

their seriousness, novelty and weight as precedents. Where the issues are of transcendental and
paramount importance not only to the public but also to the Bench and the Bar, they should be resolved
for the guidance of all.[30] Undoubtedly, the Filipino people are more than interested to know the status
of the Presidents first effort to bring about a promised change to the country. The Court takes
cognizance of the petition not due to overwhelming political undertones that clothe the issue in the eyes
of the public, but because the Court stands firm in its oath to perform its constitutional duty to settle legal
controversies with overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public office
and not merely an adjunct body of the Office of the President.[31] Thus, in order that the President may
create a public office he must be empowered by the Constitution, a statute or an authorization vested in
him by law. According to petitioner, such power cannot be presumed[32] since there is no provision in
the Constitution or any specific law that authorizes the President to create a truth commission.[33] He
adds that Section 31 of the Administrative Code of 1987, granting the President the continuing authority
to reorganize his office, cannot serve as basis for the creation of a truth commission considering the
aforesaid provision merely uses verbs such as reorganize, transfer, consolidate, merge, and
abolish.[34] Insofar as it vests in the President the plenary power to reorganize the Office of the
President to the extent of creating a public office, Section 31 is inconsistent with the principle of
separation of powers enshrined in the Constitution and must be deemed repealed upon the effectivity
thereof.[35]
Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies within
the province of Congress and not with the executive branch of government. They maintain that the
delegated authority of the President to reorganize under Section 31 of the Revised Administrative Code:
1) does not permit the President to create a public office, much less a truth commission; 2) is limited to
the reorganization of the administrative structure of the Office of the President; 3) is limited to the
restructuring of the internal organs of the Office of the President Proper, transfer of functions and
transfer of agencies; and 4) only to achieve simplicity, economy and efficiency.[36] Such continuing
authority of the President to reorganize his office is limited, and by issuing Executive Order No. 1, the
President overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about the creation by the President of a
fact-finding body such as a truth commission. Pointing to numerous offices created by past presidents, it
argues that the authority of the President to create public offices within the Office of the President Proper
has long been recognized.[37] According to the OSG, the Executive, just like the other two branches of
government, possesses the inherent authority to create fact-finding committees to assist it in the
performance of its constitutionally mandated functions and in the exercise of its administrative
functions.[38] This power, as the OSG explains it, is but an adjunct of the plenary powers wielded by the
President under Section 1 and his power of control under Section 17, both of Article VII of the
Constitution.[39]
It contends that the President is necessarily vested with the power to conduct fact-finding investigations,
pursuant to his duty to ensure that all laws are enforced by public officials and employees of his
department and in the exercise of his authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of his officials.[40] The power of the
President to investigate is not limited to the exercise of his power of control over his subordinates in the
executive branch, but extends further in the exercise of his other powers, such as his power to discipline
subordinates,[41] his power for rule making, adjudication and licensing purposes[42] and in order to be
informed on matters which he is entitled to know.[43]
The OSG also cites the recent case of Banda v. Ermita,[44] where it was held that the President has the
power to reorganize the offices and agencies in the executive department in line with his constitutionally
144

granted power of control and by virtue of a valid delegation of the legislative power to reorganize
executive offices under existing statutes.
Thus, the OSG concludes that the power of control necessarily includes the power to create offices. For
the OSG, the President may create the PTC in order to, among others, put a closure to the reported
large scale graft and corruption in the government.[45]
The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of the
power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31
contemplates reorganization as limited by the following functional and structural lines: (1) restructuring
the internal organization of the Office of the President Proper by abolishing, consolidating or merging
units thereof or transferring functions from one unit to another; (2) transferring any function under the
Office of the President to any other Department/Agency or vice versa; or (3) transferring any agency
under the Office of the President to any other Department/Agency or vice versa. Clearly, the provision
refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions. These point to situations where a body or an office is already existent but a
modification or alteration thereof has to be effected. The creation of an office is nowhere mentioned,
much less envisioned in said provision. Accordingly, the answer to the question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is a
misplaced supposition, even in the plainest meaning attributable to the term restructure an alteration
of an existing structure. Evidently, the PTC was not part of the structure of the Office of the President
prior to the enactment of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon. Executive
Secretary.[46]
But of course, the list of legal basis authorizing the President to reorganize any department or agency in
the executive branch does not have to end here. We must not lose sight of the very source of the power
that which constitutes an express grant of power. Under Section 31, Book III of Executive Order No.
292 (otherwise known as the Administrative Code of 1987), "the President, subject to the policy in the
Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing
authority to reorganize the administrative structure of the Office of the President." For this purpose, he
may transfer the functions of other Departments or Agencies to the Office of the President. In
Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that reorganization "involves the reduction of
personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of
functions." It takes place when there is an alteration of the existing structure of government offices or
units therein, including the lines of control, authority and responsibility between them. The EIIB is a
bureau attached to the Department of Finance. It falls under the Office of the President. Hence, it is
subject to the Presidents continuing authority to reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the Presidents power of control. Control is
essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former with that of the latter.[47] Clearly,
the power of control is entirely different from the power to create public offices. The former is inherent in
the Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent
duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress, empowering the President to
create a public office?
According to the OSG, the power to create a truth commission pursuant to the above provision finds
statutory basis under P.D. 1416, as amended by P.D. No. 1772.[48] The said law granted the President
the continuing authority to reorganize the national government, including the power to group, consolidate
bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services
and activities, transfer appropriations, and to standardize salaries and materials. This decree, in relation
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to Section 20, Title I, Book III of E.O. 292 has been invoked in several cases such as Larin v. Executive
Secretary.[49]
The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create a
public office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a delegation
to then President Marcos of the authority to reorganize the administrative structure of the national
government including the power to create offices and transfer appropriations pursuant to one of the
purposes of the decree, embodied in its last Whereas clause:
WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in the
organization of the national government.
Clearly, as it was only for the purpose of providing manageability and resiliency during the interim, P.D.
No. 1416, as amended by P.D. No. 1772, became functus oficio upon the convening of the First
Congress, as expressly provided in Section 6, Article XVIII of the 1987 Constitution. In fact, even the
Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause of P.D.
1416 says it was enacted to prepare the transition from presidential to parliamentary. Now, in a
parliamentary form of government, the legislative and executive powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you agree with me
that P.D. 1416 should not be considered effective anymore upon the promulgation, adoption, ratification
of the 1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National
Government is deemed repealed, at least, upon the adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.[50]
While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as
amended by P.D. No. 1772, the creation of the PTC finds justification under Section 17, Article VII of the
Constitution, imposing upon the President the duty to ensure that the laws are faithfully executed.
Section 17 reads:
Section 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power in the three principal branches of
government is a grant of all powers inherent in them. The Presidents power to conduct investigations to
aid him in ensuring the faithful execution of laws in this case, fundamental laws on public
accountability and transparency is inherent in the Presidents powers as the Chief Executive. That the
authority of the President to conduct investigations and to create bodies to execute this power is not
explicitly mentioned in the Constitution or in statutes does not mean that he is bereft of such
authority.[51] As explained in the landmark case of Marcos v. Manglapus:[52]
x x x. The 1987 Constitution, however, brought back the presidential system of government and restored
the separation of legislative, executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and balances.
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It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for
the President is head of state as well as head of government and whatever powers inhere in such
positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any provision of law, e.g., his power over the
country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the government that is neither legislative nor
judicial has to be executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated
above, the powers of the President are not limited to those specific powers under the Constitution.[53]
One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is
the power to create ad hoc committees. This flows from the obvious need to ascertain facts and
determine if laws have been faithfully executed. Thus, in Department of Health v. Camposano,[54] the
authority of the President to issue Administrative Order No. 298, creating an investigative committee to
look into the administrative charges filed against the employees of the Department of Health for the
anomalous purchase of medicines was upheld. In said case, it was ruled:
The Chief Executives power to create the Ad hoc Investigating Committee cannot be doubted. Having
been constitutionally granted full control of the Executive Department, to which respondents belong, the
President has the obligation to ensure that all executive officials and employees faithfully comply with
the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not
affected by the fact that the investigating team and the PCAGC had the same composition, or that the
former used the offices and facilities of the latter in conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an
inquiry into matters which the President is entitled to know so that he can be properly advised and
guided in the performance of his duties relative to the execution and enforcement of the laws of the land.
And if history is to be revisited, this was also the objective of the investigative bodies created in the past
like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa
Commission. There being no changes in the government structure, the Court is not inclined to declare
such executive power as non-existent just because the direction of the political winds have changed.
On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for
the operation of a public office, suffice it to say that there will be no appropriation but only an allotment or
allocations of existing funds already appropriated. Accordingly, there is no usurpation on the part of the
Executive of the power of Congress to appropriate funds. Further, there is no need to specify the amount
to be earmarked for the operation of the commission because, in the words of the Solicitor General,
whatever funds the Congress has provided for the Office of the President will be the very source of the
funds for the commission.[55] Moreover, since the amount that would be allocated to the PTC shall be
subject to existing auditing rules and regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The Presidents power to conduct investigations to ensure that laws are faithfully executed is well
recognized. It flows from the faithful-execution clause of the Constitution under Article VII, Section 17
thereof.[56] As the Chief Executive, the president represents the government as a whole and sees to it
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that all laws are enforced by the officials and employees of his department. He has the authority to
directly assume the functions of the executive department.[57]
Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and
corruption and to recommend the appropriate action. As previously stated, no quasi-judicial powers have
been vested in the said body as it cannot adjudicate rights of persons who come before it. It has been
said that Quasi-judicial powers involve the power to hear and determine questions of fact to which the
legislative policy is to apply and to decide in accordance with the standards laid down by law itself in
enforcing and administering the same law.[58] In simpler terms, judicial discretion is involved in the
exercise of these quasi-judicial power, such that it is exclusively vested in the judiciary and must be
clearly authorized by the legislature in the case of administrative agencies.
The distinction between the power to investigate and the power to adjudicate was delineated by the
Court in Cario v. Commission on Human Rights.[59] Thus:
"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research
on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into
systematically: "to search or inquire into: x x to subject to an official probe x x: to conduct an official
inquiry." The purpose of investigation, of course, is to discover, to find out, to learn, obtain information.
Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in
the facts inquired into by application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry
or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to
find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make
an investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of
which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or
otherwise, for the discovery and collection of facts concerning a certain matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine,
resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the
parties to a court case) on the merits of issues raised: x x to pass judgment on: settle judicially: x x act
as judge." And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial
powers: x x to award or grant judicially in a case of controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine
finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to
decide, settle or decree, or to sentence or condemn. x x. Implies a judicial determination of a fact, and
the entry of a judgment." [Italics included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or
even a quasi-judicial agency or office. The function of receiving evidence and ascertaining therefrom the
facts of a controversy is not a judicial function. To be considered as such, the act of receiving evidence
and arriving at factual conclusions in a controversy must be accompanied by the authority of applying
the law to the factual conclusions to the end that the controversy may be decided or resolved
authoritatively, finally and definitively, subject to appeals or modes of review as may be provided by
law.[60] Even respondents themselves admit that the commission is bereft of any quasi-judicial
power.[61]
Contrary to petitioners apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode
their respective powers. If at all, the investigative function of the commission will complement those of
the two offices. As pointed out by the Solicitor General, the recommendation to prosecute is but a
consequence of the overall task of the commission to conduct a fact-finding investigation.[62] The
actual prosecution of suspected offenders, much less adjudication on the merits of the charges against
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them,[63] is certainly not a function given to the commission. The phrase, when in the course of its
investigation, under Section 2(g), highlights this fact and gives credence to a contrary interpretation
from that of the petitioners. The function of determining probable cause for the filing of the appropriate
complaints before the courts remains to be with the DOJ and the Ombudsman.[64]
At any rate, the Ombudsmans power to investigate under R.A. No. 6770 is not exclusive but is shared
with other similarly authorized government agencies. Thus, in the case of Ombudsman v. Galicia,[65] it
was written:
This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman
Act is not exclusive but is shared with other similarly authorized government agencies such as the
PCGG and judges of municipal trial courts and municipal circuit trial courts. The power to conduct
preliminary investigation on charges against public employees and officials is likewise concurrently
shared with the Department of Justice. Despite the passage of the Local Government Code in 1991, the
Ombudsman retains concurrent jurisdiction with the Office of the President and the local Sanggunians to
investigate complaints against local elective officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal
cases under Section 15 (1) of R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any
public officer or employee, office or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in
the exercise of its primary jurisdiction, it may take over, at any stage, from any investigatory agency of
government, the investigation of such cases. [Emphases supplied]
The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a
preliminary investigation or the determination of the existence of probable cause. This is categorically
out of the PTCs sphere of functions. Its power to investigate is limited to obtaining facts so that it can
advise and guide the President in the performance of his duties relative to the execution and
enforcement of the laws of the land. In this regard, the PTC commits no act of usurpation of the
Ombudsmans primordial duties.
The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III, Book
IV in the Revised Administrative Code is by no means exclusive and, thus, can be shared with a body
likewise tasked to investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be
accorded conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano
Commission and the Zenarosa Commission, its findings would, at best, be recommendatory in nature.
And being so, the Ombudsman and the DOJ have a wider degree of latitude to decide whether or not to
reject the recommendation. These offices, therefore, are not deprived of their mandated duties but will
instead be aided by the reports of the PTC for possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the investigative power of the President, the
Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987
Constitution. Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.
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The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They
contend that it does not apply equally to all members of the same class such that the intent of singling
out the previous administration as its sole object makes the PTC an adventure in partisan
hostility.[66] Thus, in order to be accorded with validity, the commission must also cover reports of graft
and corruption in virtually all administrations previous to that of former President Arroyo.[67]
The petitioners argue that the search for truth behind the reported cases of graft and corruption must
encompass acts committed not only during the administration of former President Arroyo but also during
prior administrations where the same magnitude of controversies and anomalies[68] were reported to
have been committed against the Filipino people. They assail the classification formulated by the
respondents as it does not fall under the recognized exceptions because first, there is no substantial
distinction between the group of officials targeted for investigation by Executive Order No. 1 and other
groups or persons who abused their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No. 1 to end corruption.[69] In order to
attain constitutional permission, the petitioners advocate that the commission should deal with graft and
grafters prior and subsequent to the Arroyo administration with the strong arm of the law with equal
force.[70]
Position of respondents
According to respondents, while Executive Order No. 1 identifies the previous administration as the
initial subject of the investigation, following Section 17 thereof, the PTC will not confine itself to cases of
large scale graft and corruption solely during the said administration.[71] Assuming arguendo that the
commission would confine its proceedings to officials of the previous administration, the petitioners
argue that no offense is committed against the equal protection clause for the segregation of the
transactions of public officers during the previous administration as possible subjects of investigation is a
valid classification based on substantial distinctions and is germane to the evils which the Executive
Order seeks to correct.[72] To distinguish the Arroyo administration from past administrations, it recited
the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the
previous administration which have eroded public confidence in public institutions. There is, therefore,
an urgent call for the determination of the truth regarding certain reports of large scale graft and
corruption in the government and to put a closure to them by the filing of the appropriate cases against
those involved, if warranted, and to deter others from committing the evil, restore the peoples faith and
confidence in the Government and in their public servants.
Second. The segregation of the preceding administration as the object of fact-finding is warranted by the
reality that unlike with administrations long gone, the current administration will most likely bear the
immediate consequence of the policies of the previous administration.
Third. The classification of the previous administration as a separate class for investigation lies in the
reality that the evidence of possible criminal activity, the evidence that could lead to recovery of public
monies illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are
faithfully executed, are more easily established in the regime that immediately precede the current
administration.
Fourth. Many administrations subject the transactions of their predecessors to investigations to provide
closure to issues that are pivotal to national life or even as a routine measure of due diligence and good
housekeeping by a nascent administration like the Presidential Commission on Good Government
(PCGG), created by the late President Corazon C. Aquino under Executive Order No. 1 to pursue the
recovery of ill-gotten wealth of her predecessor former President Ferdinand Marcos and his cronies, and
the Saguisag Commission created by former President Joseph Estrada under Administrative Order No,
53, to form an ad-hoc and independent citizens committee to investigate all the facts and circumstances
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surrounding Philippine Centennial projects of his predecessor, former President Fidel V. Ramos.[73]
[Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that of the equality of right which is
embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced
in the concept of due process, as every unfair discrimination offends the requirements of justice and fair
play. It has been embodied in a separate clause, however, to provide for a more specific guaranty
against any form of undue favoritism or hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the particular act assailed partakes of an
unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.[74]
According to a long line of decisions, equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed.[75] It requires
public bodies and institutions to treat similarly situated individuals in a similar manner.[76] The purpose
of the equal protection clause is to secure every person within a states jurisdiction against intentional
and arbitrary discrimination, whether occasioned by the express terms of a statue or by its improper
execution through the states duly constituted authorities.[77] In other words, the concept of equal
justice under the law requires the state to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate governmental objective.[78]
The equal protection clause is aimed at all official state actions, not just those of the legislature.[79] Its
inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through whatever
agency or whatever guise is taken. [80]
It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification, however, to
be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests
on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing
conditions only; and (4) It applies equally to all members of the same class.[81] Superficial differences
do not make for a valid classification.[82]
For a classification to meet the requirements of constitutionality, it must include or embrace all persons
who naturally belong to the class.[83] The classification will be regarded as invalid if all the members of
the class are not similarly treated, both as to rights conferred and obligations imposed. It is not
necessary that the classification be made with absolute symmetry, in the sense that the members of the
class should possess the same characteristics in equal degree. Substantial similarity will suffice; and as
long as this is achieved, all those covered by the classification are to be treated equally. The mere fact
that an individual belonging to a class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the non-application of the law to him.[84]
The classification must not be based on existing circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of such a nature as to embrace all those who
may thereafter be in similar circumstances and conditions. It must not leave out or underinclude those
that should otherwise fall into a certain classification. As elucidated in Victoriano v. Elizalde Rope
Workers' Union[85] and reiterated in a long line of cases.[86]
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should be affected alike by a statute.
Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but
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on persons according to the circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not forbid discrimination as to things that
are different. It does not prohibit legislation which is limited either in the object to which it is directed or
by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as
in the other departments of knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere
fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid
classification is that it be reasonable, which means that the classification should be based on substantial
distinctions which make for real differences, that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it must apply equally to each member of the
class. This Court has held that the standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the
equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find
out the truth concerning the reported cases of graft and corruption during the previous
administration[87] only. The intent to single out the previous administration is plain, patent and manifest.
Mention of it has been made in at least three portions of the questioned executive order. Specifically,
these are:
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the
truth concerning the reported cases of graft and corruption during the previous administration, and which
will recommend the prosecution of the offenders and secure justice for all;
SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the COMMISSION, which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served without fear or favor.
SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred
to in Section 1, involving third level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration and thereafter submit its
finding and recommendations to the President, Congress and the Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class,
that is, a class of past administrations. It is not a class of its own. Not to include past administrations
similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such
discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness
and selective retribution.
Though the OSG enumerates several differences between the Arroyo administration and other past
administrations, these distinctions are not substantial enough to merit the restriction of the investigation
to the previous administration only. The reports of widespread corruption in the Arroyo administration
cannot be taken as basis for distinguishing said administration from earlier administrations which were
also blemished by similar widespread reports of impropriety. They are not inherent in, and do not inure
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solely to, the Arroyo administration. As Justice Isagani Cruz put it, Superficial differences do not make
for a valid classification.[88]
The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the
intended investigation to the previous administration only. The OSG ventures to opine that to include
other past administrations, at this point, may unnecessarily overburden the commission and lead it to
lose its effectiveness.[89] The reason given is specious. It is without doubt irrelevant to the legitimate
and noble objective of the PTC to stamp out or end corruption and the evil it breeds.[90]
The probability that there would be difficulty in unearthing evidence or that the earlier reports involving
the earlier administrations were already inquired into is beside the point. Obviously, deceased presidents
and cases which have already prescribed can no longer be the subjects of inquiry by the PTC. Neither is
the PTC expected to conduct simultaneous investigations of previous administrations, given the bodys
limited time and resources. The law does not require the impossible (Lex non cogit ad impossibilia).[91]
Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of
investigating almost a centurys worth of graft cases. However, the fact remains that Executive Order
No. 1 suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the truth,
must not exclude the other past administrations. The PTC must, at least, have the authority to
investigate all past administrations. While reasonable prioritization is permitted, it should not be arbitrary
lest it be struck down for being unconstitutional. In the often quoted language of Yick Wo v. Hopkins.[92]
Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by
public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to their rights, the denial of equal
justice is still within the prohibition of the constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court,
however, is of the considered view that although its focus is restricted, the constitutional guarantee of
equal protection under the laws should not in any way be circumvented. The Constitution is the
fundamental and paramount law of the nation to which all other laws must conform and in accordance
with which all private rights determined and all public authority administered.[93] Laws that do not
conform to the Constitution should be stricken down for being unconstitutional.[94] While the thrust of
the PTC is specific, that is, for investigation of acts of graft and corruption, Executive Order No. 1, to
survive, must be read together with the provisions of the Constitution. To exclude the earlier
administrations in the guise of substantial distinctions would only confirm the petitioners lament that
the subject executive order is only an adventure in partisan hostility. In the case of US v. Cyprian,[95] it
was written: A rather limited number of such classifications have routinely been held or assumed to be
arbitrary; those include: race, national origin, gender, political activity or membership in a political party,
union activity or membership in a labor union, or more generally the exercise of first amendment rights.
To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class.[96] Such a classification must not be based on
existing circumstances only, or so constituted as to preclude additions to the number included within a
class, but must be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who are in situations and circumstances which are
relative to the discriminatory legislation and which are indistinguishable from those of the members of
the class must be brought under the influence of the law and treated by it in the same way as are the
members of the class.[97]
The Court is not unaware that mere underinclusiveness is not fatal to the validity of a law under the
equal protection clause.[98] Legislation is not unconstitutional merely because it is not all-embracing
and does not include all the evils within its reach.[99] It has been written that a regulation challenged
under the equal protection clause is not devoid of a rational predicate simply because it happens to be
incomplete.[100] In several instances, the underinclusiveness was not considered a valid reason to
153

strike down a law or regulation where the purpose can be attained in future legislations or regulations.
These cases refer to the step by step process.[101] With regard to equal protection claims, a
legislature does not run the risk of losing the entire remedial scheme simply because it fails, through
inadvertence or otherwise, to cover every evil that might conceivably have been attacked.[102]
In Executive Order No. 1, however, there is no inadvertence. That the previous administration was
picked out was deliberate and intentional as can be gleaned from the fact that it was underscored at
least three times in the assailed executive order. It must be noted that Executive Order No. 1 does not
even mention any particular act, event or report to be focused on unlike the investigative commissions
created in the past. The equal protection clause is violated by purposeful and intentional
discrimination.[103]
To disprove petitioners contention that there is deliberate discrimination, the OSG clarifies that the
commission does not only confine itself to cases of large scale graft and corruption committed during the
previous administration.[104] The OSG points to Section 17 of Executive Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President
there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive Order.
The Court is not convinced. Although Section 17 allows the President the discretion to expand the scope
of investigations of the PTC so as to include the acts of graft and corruption committed in other past
administrations, it does not guarantee that they would be covered in the future. Such expanded mandate
of the commission will still depend on the whim and caprice of the President. If he would decide not to
include them, the section would then be meaningless. This will only fortify the fears of the petitioners that
the Executive Order No. 1 was crafted to tailor-fit the prosecution of officials and personalities of the
Arroyo administration.[105]
The Court tried to seek guidance from the pronouncement in the case of Virata v. Sandiganbayan,[106]
that the PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14) does not violate the equal
protection clause. The decision, however, was devoid of any discussion on how such conclusory
statement was arrived at, the principal issue in said case being only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is - whether or not the Supreme Court, in the
exercise of its constitutionally mandated power of Judicial Review with respect to recent initiatives of the
legislature and the executive department, is exercising undue interference. Is the Highest Tribunal,
which is expected to be the protector of the Constitution, itself guilty of violating fundamental tenets like
the doctrine of separation of powers? Time and again, this issue has been addressed by the Court, but it
seems that the present political situation calls for it to once again explain the legal basis of its action lest
it continually be accused of being a hindrance to the nations thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested
with Judicial Power that includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has been a
grave of abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government.
Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to
declare a treaty, international or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation unconstitutional. This power also includes the duty to rule on the
constitutionality of the application, or operation of presidential decrees, proclamations, orders,
154

instructions, ordinances, and other regulations. These provisions, however, have been fertile grounds of
conflict between the Supreme Court, on one hand, and the two co-equal bodies of government, on the
other. Many times the Court has been accused of asserting superiority over the other departments.
To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit:
And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them.[107]
Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-equal
body but rather simply making sure that any act of government is done in consonance with the
authorities and rights allocated to it by the Constitution. And, if after said review, the Court finds no
constitutional violations of any sort, then, it has no more authority of proscribing the actions under
review. Otherwise, the Court will not be deterred to pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired with noble intentions, all geared towards
the betterment of the nation and its people. But then again, it is important to remember this ethical
principle: The end does not justify the means. No matter how noble and worthy of admiration the
purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with
constitutional parameters, then it cannot still be allowed.[108] The Court cannot just turn a blind eye and
simply let it pass. It will continue to uphold the Constitution and its enshrined principles.
The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must
not be allowed to sap its strength nor greed for power debase its rectitude.[109]
Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the
present administration. Perhaps a revision of the executive issuance so as to include the earlier past
administrations would allow it to pass the test of reasonableness and not be an affront to the
Constitution. Of all the branches of the government, it is the judiciary which is the most interested in
knowing the truth and so it will not allow itself to be a hindrance or obstacle to its attainment. It must,
however, be emphasized that the search for the truth must be within constitutional bounds for ours is
still a government of laws and not of men.[110]
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the
provisions of Executive Order No. 1.
SO ORDERED.





155













Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 95367 May 23, 1995
COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ, NERIO ROGADO, and ELISA
RIVERA, petitioners,
vs.
HONORABLE CONRADO M. VASQUEZ and CONCERNED CITIZENS, respondents.
MENDOZA, J .:
This is a petition for certiorari, prohibition, and mandamus to annul the subpoena duces tecum and
orders issued by respondent Ombudsman, requiring petitioners Nerio Rogado and Elisa Rivera, as chief
accountant and record custodian, respectively, of the Economic Intelligence and Investigation Bureau
(EIIB) to produce "all documents relating to Personal Services Funds for the year 1988 and all evidence,
such as vouchers (salary) for the whole plantilla of EIIB for 1988" and to enjoin him from enforcing his
orders.
Petitioner Jose T. Almonte was formerly Commissioner of the EIIB, while Villamor C. Perez is Chief of
the EIIB's Budget and Fiscal Management Division. The subpoena duces tecum was issued by the
Ombudsman in connection with his investigation of an anonymous letter alleging that funds representing
savings from unfilled positions in the EIIB had been illegally disbursed. The letter, purporting to have
been written by an employee of the EIIB and a concerned citizen, was addressed to the Secretary of
Finance, with copies furnished several government offices, including the Office of the Ombudsman.
156

The letter reads in pertinent parts:
1 These are the things that I have been observing. During the
implementation of E.O. 127 on May 1, 1988, one hundred ninety (190)
personnel were dismissed. Before that implementation, we had a monthly
savings of P500,000.00 from unfilled plantilla position plus the
implementation of RA 6683 wherein seventy (70) regular employees
availed a total amount of P1,400,000.00 was saved from the government
monthly. The question is, how do they used or disbursed this savings?
The EIIB has a syndicate headed by the Chief of Budget Division who is
manipulating funds and also the brain of the so called "ghost agents" or
the "Emergency Intelligence Agents" (EIA). The Commissioner of EIIB
has a biggest share on this. Among his activities are:
a) Supporting RAM wherein he is involved. He gives big
amount especially during the Dec. Failed coup.
b) Payment for thirty five (30) mini UZI's.
c) Payment for the purchased of Maxima '87 for personal
used of the Commissioner.
d) Another observation was the agents under the Director
of NCR EIIB is the sole operating unit within Metro Manila
which was approved by no less than the Commissioner
due to anomalous activities of almost all agents assigned
at the central office directly under the Commissioner.
Retired Brig. Gen. Almonte as one of the Anti-Graft board
member of the Department of Finance should not tolerate
this. However, the Commissioner did not investigate his
own men instead, he placed them under the 15-30
payroll.
e) Many more which are personal.
2. Sir, my question is this. Can your good office investigate EII
intelligence funds particularly Personal Services (01) Funds? I wonder
why the Dep't of Budget & Mgmt. cannot compel EIIB to submit an actual
filled up position because almost half of it are vacant and still they are
releasing it. Are EIIB plantilla position classified? It is included in the
Personal Services Itemization (PSI) and I believe it is not classified and a
ruling from Civil Service Commission that EIIB is not exempted from Civil
Service. Another info, when we had salary differential last Oct '88 all
money for the whole plantilla were released and from that alone, Millions
were saved and converted to ghost agents of EIA.
3. Another thing that I have observed was the Chief Budget Division
possesses high caliber firearms such as a mini UZI, Armalite rifle and two
(2) 45 cal. pistol issued to him by the Assistant Commissioner wherein he
is not an agent of EIIB and authorized as such according to
memorandum order number 283 signed by the President of the Republic
of the Philippines effective 9 Jan. 1990.
157

Another observation was when EIIB agents apprehended a certain
civilian who possesses numerous assorted high powered firearms.
Agents plus one personnel from the legal proclaimed only five (5)
firearms and the remaining was pilfered by them.
Another observation is almost all EIIB agents collects payroll from the big
time smuggler syndicate monthly and brokers every week for them not to
be apprehended.
Another observation is the commissioner allocates funds coming from the
intelligence funds to the media to sustain their good image of the bureau.
In his comment
1
on the letter-complaint, petitioner Almonte denied that as a result of the separation of
personnel, the EIIB had made some savings. He averred that the only funds released to his agency by
the Department of Budget and Management (DBM) were those corresponding to 947 plantilla positions
which were filled. He also denied that there were "ghost agents" in the EIIB and claimed that
disbursements for "open" (i.e., "overt" personnel) and "closed" (i.e., "covert" personnel) plantillas of the
agency had been cleared by the Commission on Audit (COA); that the case of the 30 Uzis had already
been investigated by Congress, where it was shown that it was not the EIIB but an agent who had spent
for the firearms and they were only loaned to the EIIB pending appropriation by Congress; that, contrary
to the charge that a Maxima car had been purchased for his use, he was using a government issued car
from the NICA; that it was his prerogative as Commissioner to "ground" agents in the EIIB main office so
that they could be given reorientation and retraining; that the allegation that the EIIB operatives pilfered
smuggled firearms was without factual basis because the firearms were the subject of seizure
proceedings before the Collector of Customs, Port of Manila; that the EIIB had been uncompromising
toward employees found involved in anomalous activities; and that intelligence funds had not been used
for media propaganda and if media people went to the EIIB it was because of newsworthy stories.
Petitioner asked that the complaint be dismissed and the case considered closed.
Similarly petitioner Perez, budget chief of the EIIB, denied in his comment
2
dated April 3, 1990 that
savings had been realized from the implementation of E.O. No. 127, since the DBM provided allocations
for only the remaining 947 personnel. He said that the disbursement of funds for the plantilla positions
for "overt" and "covert" personnel had been cleared by the COA and that the high-powered firearms had
been issued for the protection of EIIB personnel attending court hearings and the Finance Officer in
withdrawing funds from the banks.
The Graft Investigation Officer of the Ombudsman's office, Jose F. Sao, found the comments
unsatisfactory, being "unverified and plying only on generalizations without meeting specifically the
points raised by complainant as constitutive of the alleged anomalies."
3
He, therefore, asked for
authority to conduct a preliminary investigation. Anticipating the grant of his request, he issued a
subpoena
4
to petitioners Almonte and Perez, requiring them to submit their counter-affidavits and the
affidavits of their witnesses, as well as a subpoena duces tecum
5
to the Chief of the EIIB's Accounting
Division ordering him to bring "all documents relating to Personal Services Funds for the year 1988 and
all evidence, such as vouchers (salary) for the whole plantilla of EIIB for 1988."
Petitioners Almonte and Perez moved to quash the subpoena and the subpoena duces tecum. In his
Order dated June 15, 1990,
6
respondent Ombudsman granted the motion to quash the subpoena in
view of the fact that there were no affidavits filed against petitioners. But he denied their motion to quash
the subpoena duces tecum. He ruled that petitioners were not being forced to produce evidence against
themselves, since the subpoena duces tecum was directed to the Chief Accountant, petitioner Nerio
Rogado. In addition the Ombudsman ordered the Chief of the Records a Section of the EIIB, petitioner
Elisa Rivera, to produce before the investigator "all documents relating to Personnel Service Funds, for
the year 1988, and all documents, salary vouchers for the whole plantilla of the EIIB for 1988, within ten
(10) days from receipt hereof."
158

Petitioners Almonte and Perez moved for a reconsideration, arguing that Rogado and Rivera were EIIB
employees under their supervision and that the Ombudsman was doing indirectly what he could not do
directly, i.e., compelling them (petitioners Almonte and Perez) to produce evidence against themselves.
Petitioners' motion was denied in respondent Ombudsman's order dated August 6, 1990. Hence, this
petition which questions the orders of June 15, 1990 and August 6, 1990 of respondent Ombudsman.
To put this case in perspective it should be stated at the outset that it does not concern a demand by a
citizen for information under the freedom of information guarantee of the Constitution.
7
Rather it
concerns the power of the Office of the Ombudsman to obtain evidence in connection with an
investigation conducted by it vis-a-vis the claim of privilege of an agency of the Government. Thus
petitioners raise the following issues:
8

I. WHETHER OR NOT A CASE BROUGHT ABOUT BY AN UNSIGNED
AND UNVERIFIED LETTER COMPLAINT IS AN "APPROPRIATE
CASE" WITHIN THE CONCEPT OF THE CONSTITUTION IN WHICH
PUBLIC RESPONDENT CAN OBLIGE PETITIONERS BY VIRTUE OF
HIS SUBPOENA DUCES TECUM TO PRODUCE TO HIM "ALL
DOCUMENTS RELATING TO PERSONAL SERVICES FUNDS FOR
THE YEAR 1988 AND ALL EVIDENCES, SUCH AS VOUCHERS
(SALARY) FOR THE WHOLE PLANTILLA OF EIIB FOR 1988."
II. WHETHER OR NOT "ALL DOCUMENTS RELATING TO PERSONAL
SERVICES FUNDS FOR THE YEAR 1988 AND ALL EVIDENCES,
SUCH AS VOUCHERS (SALARY) FOR THE WHOLE PLANTILLA OF
EIIB FOR 1988" ARE CLASSIFIED AND, THEREFORE, BEYOND THE
REACH OF PUBLIC RESPONDENT'S SUBPOENA DUCES TECUM.
I.
There are several subsidiary issues raised by petitioners, but the principal ones revolve on the question
whether petitioners can be ordered to produce documents relating to personal services and salary
vouchers of EIIB employees on the plea that such documents are classified. Disclosure of the
documents in question is resisted on the ground that "knowledge of EIIB's documents relative to its
Personal Services Funds and its plantilla . . . will necessarily [lead to] knowledge of its operations,
movements, targets, strategies, and tactics and the whole of its being" and this could "destroy the EIIB."
9

Petitioners do not question the power of the Ombudsman to issue a subpoena duces tecum nor the
relevancy or materiality of the documents required to be produced, to the pending investigation in the
Ombudsman's office. Accordingly, the focus of discussion should be on the Government's claim of
privilege.
A.
At common law a governmental privilege against disclosure is recognized with respect to state secrets
bearing on military, diplomatic and similar matters. This privilege is based upon public interest of such
paramount importance as in and of itself transcending the individual interests of a private citizen, even
though, as a consequence thereof, the plaintiff cannot enforce his legal rights.
10

In addition, in the litigation over the Watergate tape subpoena in 1973, the U.S. Supreme Court
recognized the right of the President to the confidentiality of his conversations and correspondence,
which it likened to "the claim of confidentiality of judicial deliberations." Said the Court in United States v.
Nixon:
11

159

The expectation of a President to the confidentiality of his conversations and
correspondence, like the claim of confidentiality of judicial deliberations, for example, has
all the values to which we accord deference for the privacy of all citizens and, added to
those values, is the necessity for protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-making. A President and those who
assist him must be free to explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be unwilling to express except
privately. These are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of the government and
inextricably rooted in the separation of powers under the Constitution. . . .
Thus, the Court for the first time gave executive privilege a constitutional status and a new name,
although not necessarily a new birth.
12

"The confidentiality of judicial deliberations" mentioned in the opinion of the Court referred to the fact that
Justices of the U.S. Supreme Court and judges of lower federal courts have traditionally treated their
working papers and judicial notes as private property. A 1977 proposal in the U.S. Congress that
Justices and judges of lower federal courts "should be encouraged to make such arrangements as will
assure the preservation and eventual availability of their personal papers, especially the deposit of their
papers in the same depository they select for [their] Public Papers"
13
was rebuffed by the Justices who,
in a letter to the Chairman of the Subcommittee on Regulation and Government Information of the U.S.
Senate, referred to "difficult concerns respecting the appropriate separation that must be maintained
between the legislative branch and this Court."
14

There are, in addition to such privileges, statutorily-created ones such as the Government's privilege to
withhold the identity of persons who furnish information of violations of laws.
15

With respect to the privilege based on state secret, the rule was stated by the U.S. Supreme Court as
follows:
Judicial control over the evidence in a case cannot be abdicated to the caprice of
executive officers. Yet we will not go so far as to say that the court may automatically
require a complete disclosure to the judge before the claim of privilege will be accepted
in any case. It may be possible to satisfy the court, from all the circumstances of the
case, that there is a reasonable danger that compulsion of the evidence will expose
military matters which, in the interest of national security, should not be divulged. When
this is the case, the occasion for the privilege is appropriate, and the court should not
jeopardize the security which the privilege is meant to protect by insisting upon an
examination of the evidence, even by the judge alone, in chambers. . . . In each case,
the showing of necessity which is made will determine how far the court should probe in
satisfying itself that the occasion for invoking the privilege is appropriate. Where there is
a strong showing of necessity, the claim of privilege should not be lightly accepted, but
even the most compelling necessity cannot overcome the claim of privilege if the court is
ultimately satisfied that military secrets are at stake. A fortiori, where necessity is
dubious, a formal claim of privilege, made under the circumstances of this case, will have
to prevail.
16

On the other hand, where the claim of confidentiality does not rest on the need to protect military,
diplomatic or other national security secrets but on a general public interest in the confidentiality of his
conversations, courts have declined to find in the Constitution an absolute privilege of the President
against a subpoena considered essential to the enforcement of criminal laws.
17

B.
160

In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by the production
of records pertaining to the personnel of the EIIB. Indeed, EIIB's function is the gathering and evaluation
of intelligence reports and information regarding "illegal activities affecting the national economy, such
as, but not limited to, economic sabotage, smuggling, tax evasion, dollar salting."
18
Consequently, while
in cases which involve state secrets it may be sufficient to determine from the circumstances of the case
that there is reasonable danger that compulsion of the evidence will expose military matters without
compelling production,
19
no similar excuse can be made for a privilege resting on other considerations.
Nor has our attention been called to any law or regulation which considers personnel records of the EIIB
as classified information. To the contrary, COA Circular No. 88-293, which petitioners invoke to support
their contention that there is adequate safeguard against misuse of public funds, provides that the "only
item of expenditure which should be treated strictly confidential" is that which refers to the "purchase of
information and payment of rewards." Thus, part V, No. 7 of the Circular reads:
The only item of expenditure which should be treated as strictly confidential because it
falls under the category of classified information is that relating to purchase of
information and payment of rewards. However, reasonable records should be maintained
and kept for inspection of the Chairman, Commission on Audit or his duly authorized
representative. All other expenditures are to be considered unclassified supported by
invoices, receipts and other documents, and, therefore, subject to reasonable inquiry by
the Chairman or his duly authorized representative.
20

It should be noted that the regulation requires that "reasonable records" be kept justifying the
confidential or privileged character of the information relating to informers. There are no such
reasonable records in this case to substitute for the records claimed to be confidential.
The other statutes and regulations
21
invoked by petitioners in support of their contention that the
documents sought in the subpoena duces tecum of the Ombudsman are classified merely indicate the
confidential nature of the EIIB's functions, but they do not exempt the EIIB from the duty to account for
its funds to the proper authorities. Indeed by denying that there were savings made from certain items in
the agency and alleging that the DBM had released to the EIIB only the allocations needed for the 947
personnel retained after its reorganization, petitioners in effect invited inquiry into the veracity of their
claim. If, as petitioners claim, the subpoenaed records have been examined by the COA and found by it
to be regular in all respects, there is no reason why they cannot be shown to another agency of the
government which by constitutional mandate is required to look into any complaint concerning public
office.
On the other hand, the Ombudsman is investigating a complaint that several items in the EIIB were filled
by fictitious persons and that the allotments for these items in 1988 were used for illegal purposes. The
plantilla and other personnel records are relevant to his investigation. He and his Deputies are
designated by the Constitution "protectors of the people" and as such they are required by it "to act
promptly on complaints in any form or manner against public officials or employees of the Government,
or any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporation."
22

His need for the documents thus outweighs the claim of confidentiality of petitioners. What is more, while
there might have been compelling reasons for the claim of privilege in 1988 when it was asserted by
petitioners, now, seven years later, these reasons may have been attenuated, if they have not in fact
ceased. The agents whose identities could not then be revealed may have ceased from the service of
the EIIB, while the covert missions to which they might have been deployed might either have been
accomplished or abandoned. On the other hand, the Ombudsman's duty to investigate the complaint
that there were in 1988 unfilled positions in the EIIB for which continued funding was received by its
officials and put to illegal use, remains.
161

Above all, even if the subpoenaed documents are treated as presumptively privileged, this decision
would only justify ordering their inspection in camera but not their nonproduction. However, as
concession to the nature of the functions of the EIIB and just to be sure no information of a confidential
character is disclosed, the examination of records in this case should be made in strict confidence by the
Ombudsman himself. Reference may be made to the documents in any decision or order which the
Ombudsman may render or issue but only to the extent that it will not reveal covert activities of the
agency. Above all, there must be a scrupulous protection of the documents delivered.
With these safeguards outlined, it is believed that a satisfactory resolution of the conflicting claims of the
parties is achieved. It is not amiss to state that even matters of national security have been inquired into
in appropriate in camera proceedings by the courts. In Lansang v. Garcia
23
this Court held closed door
sessions, with only the immediate parties and their counsel present, to determine claims that because of
subversion there was imminent danger to public safety warranting the suspension of the writ of habeas
corpus in 1971. Again in Marcos v. Manglapus
24
the Court met behind closed doors to receive military
briefings on the threat posed to national security by the return to the country of the former President and
his family. In the United States, a similar inquiry into the danger to national security as a result of the
publication of classified documents on the Vietnam war was upheld by the U.S. Supreme Court.
25
We
see no reason why similar safeguards cannot be made to enable an agency of the Government, like the
Office of the Ombudsman, to carry out its constitutional duty to protect public interests
26
while insuring
the confidentiality of classified documents.
C.
Petitioners contend that under Art. XI, 13(4) the Ombudsman can act only "in any appropriate case,
and subject to such limitations as may be provided by law" and that because the complaint in this case is
unsigned and unverified, the case is not an appropriate one. This contention lacks merit. As already
stated, the Constitution expressly enjoins the Ombudsman to act on any complaint filed "in any form or
manner" concerning official acts or omissions. Thus, Art. XI, 12 provides:
The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the
Government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations and shall in appropriate cases, notify the
complainants of the action taken and the result thereof. (Emphasis added)
Similarly, the Ombudsman Act of 1989 (Rep. Act No. 6770) provides in 26(2):
The Office of the Ombudsman shall receive complaints from any source in whatever form
concerning an official act or omission. It shall act on the complaint immediately and if it
finds the same entirely baseless, it shall dismiss the same and inform the complainant of
such dismissal citing the reasons therefor. If it finds a reasonable ground to investigate
further, it shall first furnish the respondent public officer or employee with a summary of
the complaint and require him to submit a written answer within seventy-two hours from
receipt thereof. If the answer is found satisfactory, it shall dismiss the case. (Emphasis
added)
Accordingly, in Diaz v. Sandiganbayan
27
the Court held that testimony given at a fact-finding
investigation and charges made in a pleading in a case in court constituted a sufficient basis for the
Ombudsman to commence investigation, because a formal complaint was really not necessary.
Rather than referring to the form of complaints, therefore, the phrase "in an appropriate case" in Art. XI,
12 means any case concerning official act or omission which is alleged to be "illegal, unjust, improper,
or inefficient."
28
The phrase "subject to such limitations as may be provided by law" refers to such
limitations as may be provided by Congress or, in the absence thereof, to such limitations as may be
162

imposed by the courts. Such limitations may well include a requirement that the investigation be
concluded in camera, with the public excluded, as exception to the general nature of the proceedings in
the Office of the Ombudsman.
29
A reconciliation is thereby made between the demands of national
security and the requirement of accountability enshrined in the Constitution.
30

What has been said above disposes of petitioners' contention that the anonymous letter-complaint
against them is nothing but a vexatious prosecution. It only remains to say that the general investigation
in the Ombudsman' s office is precisely for the purpose of protecting those against whom a complaint is
filed against hasty, malicious, and oppressive prosecution as much as securing the State from useless
and expensive trials. There may also be benefit resulting from such limited in camera inspection in terms
of increased public confidence that the privilege is not being abused and increased likelihood that no
abuse is in fact occurring.
II.
Nor is there violation of petitioner's right to the equal protection of the laws. Petitioners complain that "in
all forum and tribunals . . . the aggrieved parties . . . can only hale respondents via their verified
complaints or sworn statements with their identities fully disclosed," while in proceedings before the
Office of the Ombudsman anonymous letters suffice to start an investigation. In the first place, there can
be no objection to this procedure because it is provided in the Constitution itself. In the second place, it
is apparent that in permitting the filing of complaints "in any form and in a manner," the framers of the
Constitution took into account the well-known reticence of the people which keep them from complaining
against official wrongdoings. As this Court had occasion to point out, the Office of the Ombudsman is
different from the other investigatory and prosecutory agencies of the government because those
subject to its jurisdiction are public officials who, through official pressure and influence, can quash,
delay or dismiss investigations held against them.
31
On the other hand complainants are more often
than not poor and simple folk who cannot afford to hire lawyers.
32

III.
Finally, it is contended that the issuance of the subpoena duces tecum would violate petitioners' right
against self-incrimination. It is enough to state that the documents required to be produced in this case
are public records and those to whom the subpoena duces tecum is directed are government officials in
whose possession or custody the documents are. Moreover, if, as petitioners claim the disbursement by
the EIIB of funds for personal service has already been cleared by the COA, there is no reason why they
should object to the examination of the documents by respondent Ombudsman.
WHEREFORE, the petition is DISMISSED, but it is directed that the inspection of subpoenaed
documents be made personally in camera by the Ombudsman, and with all the safeguards outlined in
this decision.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno and
Vitug, JJ., concur.
Francisco, J., is on leave.



163












Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23794 February 17, 1968
ORMOC SUGAR COMPANY, INC., plaintiff-appellant,
vs.
THE TREASURER OF ORMOC CITY, THE MUNICIPAL BOARD OF ORMOC CITY, HON. ESTEBAN
C. CONEJOS as Mayor of Ormoc City and ORMOC CITY, defendants-appellees.
Ponce Enrile, Siguion Reyna, Montecillo & Belo and Teehankee, Carreon & Taada for plaintiff-
appellant.
Ramon O. de Veyra for defendants-appellees.
BENGZON, J.P., J .:
On January 29, 1964, the Municipal Board of Ormoc City passed
1
Ordinance No. 4, Series of
1964, imposing "on any and all productions of centrifugal sugar milled at the Ormoc Sugar Company,
Inc., in Ormoc City a municipal tax equivalent to one per centum (1%) per export sale to the United
States of America and other foreign countries."
2

Payments for said tax were made, under protest, by Ormoc Sugar Company, Inc. on March 20,
1964 for P7,087.50 and on April 20, 1964 for P5,000, or a total of P12,087.50.
On June 1, 1964, Ormoc Sugar Company, Inc. filed before the Court of First Instance of Leyte,
with service of a copy upon the Solicitor General, a complaint
3
against the City of Ormoc as well as its
Treasurer, Municipal Board and Mayor, alleging that the afore-stated ordinance is unconstitutional for
being violative of the equal protection clause (Sec. 1[1], Art. III, Constitution) and the rule of uniformity of
164

taxation (Sec. 22[1]), Art. VI, Constitution), aside from being an export tax forbidden under Section 2287
of the Revised Administrative Code. It further alleged that the tax is neither a production nor a license
tax which Ormoc City under Section 15-kk of its charter and under Section 2 of Republic Act 2264,
otherwise known as the Local Autonomy Act, is authorized to impose; and that the tax amounts to a
customs duty, fee or charge in violation of paragraph 1 of Section 2 of Republic Act 2264 because the
tax is on both the sale and export of sugar.
Answering, the defendants asserted that the tax ordinance was within defendant city's power to
enact under the Local Autonomy Act and that the same did not violate the afore-cited constitutional
limitations. After pre-trial and submission of the case on memoranda, the Court of First Instance, on
August 6, 1964, rendered a decision that upheld the constitutionality of the ordinance and declared the
taxing power of defendant chartered city broadened by the Local Autonomy Act to include all other forms
of taxes, licenses or fees not excluded in its charter.
Appeal therefrom was directly taken to Us by plaintiff Ormoc Sugar Company, Inc. Appellant
alleges the same statutory and constitutional violations in the aforesaid taxing ordinance mentioned
earlier.
Section 1 of the ordinance states: "There shall be paid to the City Treasurer on any and all
productions of centrifugal sugar milled at the Ormoc Sugar Company, Incorporated, in Ormoc City, a
municipal tax equivalent to one per centum (1%) per export sale to the United States of America and
other foreign countries." Though referred to as a tax on the export of centrifugal sugar produced at
Ormoc Sugar Company, Inc. For production of sugar alone is not taxable; the only time the tax applies is
when the sugar produced is exported.
Appellant questions the authority of the defendant Municipal Board to levy such an export tax, in
view of Section 2287 of the Revised Administrative Code which denies from municipal councils the
power to impose an export tax. Section 2287 in part states: "It shall not be in the power of the municipal
council to impose a tax in any form whatever, upon goods and merchandise carried into the municipality,
or out of the same, and any attempt to impose an import or export tax upon such goods in the guise of
an unreasonable charge for wharfage use of bridges or otherwise, shall be void."
Subsequently, however, Section 2 of Republic Act 2264 effective June 19, 1959, gave chartered
cities, municipalities and municipal districts authority to levy for public purposes just and uniform taxes,
licenses or fees. Anent the inconsistency between Section 2287 of the Revised Administrative Code and
Section 2 of Republic Act 2264, this Court, in Nin Bay Mining Co. v. Municipality of Roxas
4
held the
former to have been repealed by the latter. And expressing Our awareness of the transcendental effects
that municipal export or import taxes or licenses will have on the national economy, due to Section 2 of
Republic Act 2264, We stated that there was no other alternative until Congress acts to provide remedial
measures to forestall any unfavorable results.
The point remains to be determined, however, whether constitutional limits on the power of
taxation, specifically the equal protection clause and rule of uniformity of taxation, were infringed.
The Constitution in the bill of rights provides: ". . . nor shall any person be denied the equal
protection of the laws." (Sec. 1 [1], Art. III) In Felwa vs. Salas,
5
We ruled that the equal protection clause
applies only to persons or things identically situated and does not bar a reasonable classification of the
subject of legislation, and a classification is reasonable where (1) it is based on substantial distinctions
which make real differences; (2) these are germane to the purpose of the law; (3) the classification
applies not only to present conditions but also to future conditions which are substantially identical to
those of the present; (4) the classification applies only to those who belong to the same class.
A perusal of the requisites instantly shows that the questioned ordinance does not meet them, for
it taxes only centrifugal sugar produced and exported by the Ormoc Sugar Company, Inc. and none
165

other. At the time of the taxing ordinance's enactment, Ormoc Sugar Company, Inc., it is true, was the
only sugar central in the city of Ormoc. Still, the classification, to be reasonable, should be in terms
applicable to future conditions as well. The taxing ordinance should not be singular and exclusive as to
exclude any subsequently established sugar central, of the same class as plaintiff, for the coverage of
the tax. As it is now, even if later a similar company is set up, it cannot be subject to the tax because the
ordinance expressly points only to Ormoc City Sugar Company, Inc. as the entity to be levied upon.
Appellant, however, is not entitled to interest; on the refund because the taxes were not arbitrarily
collected (Collector of Internal Revenue v. Binalbagan).
6
At the time of collection, the ordinance provided
a sufficient basis to preclude arbitrariness, the same being then presumed constitutional until declared
otherwise.
WHEREFORE, the decision appealed from is hereby reversed, the challenged ordinance is
declared unconstitutional and the defendants-appellees are hereby ordered to refund the P12,087.50
plaintiff-appellant paid under protest. No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando,
JJ., concur.1wph 1. t




Section 2 Searches and Seizures
People vs. Marti [G.R. No. 81561, January 18, 1991]
Stonehill vs. Diokno [G.R. No. L-19550, June 19,1967]
Soliven vs. Makasiar [G.R. No. 82585, November 14, 1988]
Silva vs. Presiding Judge of RTC, Negros Oriental [G.R. No. 81756, October 21, 1991]
Morano vs. Vivo [G.R. No. L-22196, June 30, 1967]
Harvey vs. Santiago [G.R. No. 82544, June 28,1988]
Alvarez vs. CFI [G.R. No. 45358, January 29, 1937]
Mata vs. Bayona [G.R. No. 50720, March 26, 1984]
People vs. Del Rosario [G.R. No. 109633, July 20,1994]
Umil vs. Ramos [G.R. No. 81567, July 9, 1990]
People vs. Sucro [G.R. No. 93239, March 18, 1991]
People vs. Rodriqueza [G.R. No. 95902, February 4,1992]
166

Go vs. Court of Appeals [G.R. No. 101837,February 11, 1992]
Posadas vs. Court of Appeals [G.R. No. 89139,August 2, 1990]
People vs. Mengote [G.R. No. 87059, June 22,1992]
Malacat vs. Court of Appeals [G.R. No. 123595,December 12, 1997]
People vs Aminhudin [G.R. No. L-74869, July 6,1988]
People vs Malmstedt [G.R. No. 91107, June 19,1991]
Epsano vs. Court of Appeals [G.R. No. 120431,April 1, 1998]
Papa vs. Mago [G.R. No. L-27360, February 28,1968]
People vs. Musa [G.R. No. 96177, January 27, 1993]
Valmonte vs. De Villa [G.R. No. 83988, September 29, 1989]
Rules 113 and 126 of the Revised Rules of Court
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 81561 January 18, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.
BIDIN, J .:p
This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial
Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation to
Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known
as the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law
wife, Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in
the Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped
packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to
them. The appellant informed Anita Reyes that he was sending the packages to a friend
in Zurich, Switzerland. Appellant filled up the contract necessary for the transaction,
writing therein his name, passport number, the date of shipment and the name and
167

address of the consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich,
Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the packages.
Appellant, however, refused, assuring her that the packages simply contained books,
cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's
representation, Anita Reyes no longer insisted on inspecting the packages. The four (4)
packages were then placed inside a brown corrugated box one by two feet in size (1' x
2'). Styro-foam was placed at the bottom and on top of the packages before the box was
sealed with masking tape, thus making the box ready for shipment (Decision, p. 8).
Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr.
Job Reyes (proprietor) and husband of Anita (Reyes), following standard operating
procedure, opened the boxes for final inspection. When he opened appellant's box, a
peculiar odor emitted therefrom. His curiousity aroused, he squeezed one of the bundles
allegedly containing gloves and felt dried leaves inside. Opening one of the bundles, he
pulled out a cellophane wrapper protruding from the opening of one of the gloves. He
made an opening on one of the cellophane wrappers and took several grams of the
contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a
laboratory examination of the samples he extracted from the cellophane wrapper (tsn,
pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the Narcotics Section of
the National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that
date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job
Reyes informed the NBI that the rest of the shipment was still in his office. Therefore, Job
Reyes and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita,
Manila (tsn, p. 30, October 6, 1987).
Job Reyes brought out the box in which appellant's packages were placed and, in the
presence of the NBI agents, opened the top flaps, removed the styro-foam and took out
the cellophane wrappers from inside the gloves. Dried marijuana leaves were found to
have been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987;
Emphasis supplied).
The package which allegedly contained books was likewise opened by Job Reyes. He
discovered that the package contained bricks or cake-like dried marijuana leaves. The
package which allegedly contained tabacalera cigars was also opened. It turned out that
dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6,
1987).
The NBI agents made an inventory and took charge of the box and of the contents
thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3,
October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his
passport being the Manila Central Post Office, the agents requested assistance from the latter's Chief
Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office, was invited
by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same day the
Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section for laboratory
examination. It turned out that the dried leaves were marijuana flowering tops as certified by the forensic
chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).
168

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the
Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY
SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE
UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION
OF THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION
(Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of
his constitutional rights against unreasonable search and seizure and privacy of communication (Sec. 2
and 3, Art. III, Constitution) and therefore argues that the same should be held inadmissible in evidence
(Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
Our present constitutional provision on the guarantee against unreasonable search and seizure had its
origin in the 1935 Charter which, worded as follows:
The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue
but upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized. (Sec. 1 [3],
Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As
such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in this jurisdiction.
169

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367
US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]),
declared as inadmissible any evidence obtained by virtue of a defective search and seizure warrant,
abandoning in the process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948])
wherein the admissibility of evidence was not affected by the illegality of its seizure. The 1973 Charter
(Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over up to the present with the
advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable
searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon,
66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987];
See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably
procured by the State acting through the medium of its law enforcers or other authorized government
agencies.
On the other hand, the case at bar assumes a peculiar character since the evidence sought to be
excluded was primarily discovered and obtained by a private person, acting in a private capacity and
without the intervention and participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable searches and seizure
has been violated? Stated otherwise, may an act of a private individual, allegedly in violation of
appellant's constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the
Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure) refers to the
immunity of one's person, whether citizen or alien, from interference by government,
included in which is his residence, his papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the access except under
the circumstances above noted, for in the traditional formulation, his house, however
humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which
is called upon to refrain from any invasion of his dwelling and to respect the privacies of
his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States,
116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing
the right against unreasonable searches and seizures declared that:
(t)he Fourth Amendment gives protection against unlawful searches and seizures, and
as shown in previous cases, its protection applies to governmental action. Its origin and
history clearly show that it was intended as a restraint upon the activities of sovereign
authority, and was not intended to be a limitation upon other than governmental
agencies; as against such authority it was the purpose of the Fourth Amendment to
secure the citizen in the right of unmolested occupation of his dwelling and the
possession of his property, subject to the right of seizure by process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who
searched the automobile to ascertain the owner thereof found marijuana instead, without the knowledge
170

and participation of police authorities, was declared admissible in prosecution for illegal possession of
narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure
clauses are restraints upon the government and its agents, not upon private individuals (citing People v.
Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965);
State v. Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:
The search of which appellant complains, however, was made by a private citizen the
owner of a motel in which appellant stayed overnight and in which he left behind a travel
case containing the evidence*** complained of. The search was made on the motel owner's
own initiative. Because of it, he became suspicious, called the local police, informed them of
the bag's contents, and made it available to the authorities.
The fourth amendment and the case law applying it do not require exclusion of evidence
obtained through a search by a private citizen. Rather, the amendment only proscribes
governmental action."
The contraband in the case at bar having come into possession of the Government without the latter
transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent
reason why the same should not be admitted against him in the prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure
of the evidence later on used in prosecuting the case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the
argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents
conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made search/inspection
of the packages. Said inspection was reasonable and a standard operating procedure on the part of Mr.
Reyes as a precautionary measure before delivery of packages to the Bureau of Customs or the Bureau
of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the
same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the
parcel containing the rest of the shipment and entrusted the care and custody thereof to the NBI agents.
Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to the postulate
of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes
into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that
which is in plain sight is not a search. Having observed that which is open, where no trespass has been
committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband
articles are identified without a trespass on the part of the arresting officer, there is not the search that is
prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California
374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken
into custody of the police at the specific request of the manager and where the search was initially made
by the owner there is no unreasonable search and seizure within the constitutional meaning of the term.
171

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private
individuals finds support in the deliberations of the Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must always be subject to protection. But protection
against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query
which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The Bill
of Rights governs the relationship between the individual and the state. Its concern is not
the relation between individuals, between a private individual and other individuals. What
the Bill of Rights does is to declare some forbidden zones in the private sphere
inaccessible to any power holder. (Sponsorship Speech of Commissioner Bernas ,
Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis
supplied)
The constitutional proscription against unlawful searches and seizures therefore applies as a restraint
directed only against the government and its agencies tasked with the enforcement of the law. Thus, it
could only be invoked against the State to whom the restraint against arbitrary and unreasonable
exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is
to pass the test of constitutionality. However, if the search is made at the behest or initiative of the
proprietor of a private establishment for its own and private purposes, as in the case at bar, and without
the intervention of police authorities, the right against unreasonable search and seizure cannot be
invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection
against unreasonable searches and seizures cannot be extended to acts committed by private
individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the
present phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence
obtained in violation of the constitutional prohibition against illegal search and seizure, it matters not
whether the evidence was procured by police authorities or private individuals (Appellant's Brief, p. 8,
Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships between individuals.
Moreover, it must be emphasized that the modifications introduced in the 1987 Constitution (re: Sec. 2,
Art. III) relate to the issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of
the judge in the issuance thereof (See Soliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13
[October 1, 1985] and Circular No. 12 [June 30, 1987]. The modifications introduced deviate in no
manner as to whom the restriction or inhibition against unreasonable search and seizure is directed
against. The restraint stayed with the State and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the
State by an individual unjustly traduced by the exercise of sovereign authority. To agree with appellant
that an act of a private individual in violation of the Bill of Rights should also be construed as an act of
the State would result in serious legal complications and an absurd interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected through private seizure
equally applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant's
constitutional rights to privacy and communication.
172

2. In his second assignment of error, appellant contends that the lower court erred in convicting him
despite the undisputed fact that his rights under the constitution while under custodial investigation were
not observed.
Again, the contention is without merit, We have carefully examined the records of the case and found
nothing to indicate, as an "undisputed fact", that appellant was not informed of his constitutional rights or
that he gave statements without the assistance of counsel. The law enforcers testified that
accused/appellant was informed of his constitutional rights. It is presumed that they have regularly
performed their duties (See. 5(m), Rule 131) and their testimonies should be given full faith and
credence, there being no evidence to the contrary. What is clear from the records, on the other hand, is
that appellant refused to give any written statement while under investigation as testified by Atty.
Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here,
did you investigate the accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the accused availed of
his constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p.
62; Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by the defense on cross-
examination. As borne out by the records, neither was there any proof by the defense that appellant
gave uncounselled confession while being investigated. What is more, we have examined the assailed
judgment of the trial court and nowhere is there any reference made to the testimony of appellant while
under custodial investigation which was utilized in the finding of conviction. Appellant's second
assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not
the owner of the packages which contained prohibited drugs but rather a certain Michael, a German
national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30-minute
conversation, Michael requested him to ship the packages and gave him P2,000.00 for the cost of the
shipment since the German national was about to leave the country the next day (October 15, 1987,
TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving
and contrary to human experience. It can easily be fabricated. An acquaintance with a complete stranger
struck in half an hour could not have pushed a man to entrust the shipment of four (4) parcels and shell
out P2,000.00 for the purpose and for appellant to readily accede to comply with the undertaking without
first ascertaining its contents. As stated by the trial court, "(a) person would not simply entrust
contraband and of considerable value at that as the marijuana flowering tops, and the cash amount of
P2,000.00 to a complete stranger like the Accused. The Accused, on the other hand, would not simply
accept such undertaking to take custody of the packages and ship the same from a complete stranger
on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand,
appellant failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are negative
self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight
than the testimony of credible witnesses who testify on affirmative matters (People v. Esquillo, 171
SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he
was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of
173

Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a
Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from appellant's
residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21;
Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be
credible in itself such as the common experience and observation of mankind can approve as probable
under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg.
130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]);
Castaares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even bother to ask
Michael's full name, his complete address or passport number. Furthermore, if indeed, the German
national was the owner of the merchandise, appellant should have so indicated in the contract of
shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the contract as the owner
and shipper thereof giving more weight to the presumption that things which a person possesses, or
exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is
therefore estopped to claim otherwise.
Premises considered, we see no error committed by the trial court in rendering the assailed judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime
charged is hereby AFFIRMED. No costs.
SO ORDERED. Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19550 June 19, 1967
HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his
capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS PEDRO
D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G.
REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal
Court of Manila; JUDGE HERMOGENES CALUAG, Court of First Instance of Rizal-Quezon City
Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon City, respondents.
Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro,
Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for
respondents.
CONCEPCION, C.J .:
Upon application of the officers of the government named on the margin
1
hereinafter referred to as
Respondents-Prosecutors several judges
2
hereinafter referred to as Respondents-Judges
issued, on different dates,
3
a total of 42 search warrants against petitioners herein
4
and/or the
corporations of which they were officers,
5
directed to the any peace officer, to search the persons above-
named and/or the premises of their offices, warehouses and/or residences, and to seize and take
possession of the following personal property to wit:
174

Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals,
portfolios, credit journals, typewriters, and other documents and/or papers showing all business
transactions including disbursements receipts, balance sheets and profit and loss statements
and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or
intended to be used as the means of committing the offense," which is described in the applications
adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and the Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as contravening the Constitution and
the Rules of Court because, inter alia: (1) they do not describe with particularity the documents,
books and things to be seized; (2) cash money, not mentioned in the warrants, were actually seized; (3)
the warrants were issued to fish evidence against the aforementioned petitioners in deportation cases
filed against them; (4) the searches and seizures were made in an illegal manner; and (5) the
documents, papers and cash money seized were not delivered to the courts that issued the warrants, to
be disposed of in accordance with law on March 20, 1962, said petitioners filed with the Supreme
Court this original action for certiorari, prohibition, mandamus and injunction, and prayed that, pending
final disposition of the present case, a writ of preliminary injunction be issued restraining Respondents-
Prosecutors, their agents and /or representatives from using the effects seized as aforementioned or any
copies thereof, in the deportation cases already adverted to, and that, in due course, thereafter, decision
be rendered quashing the contested search warrants and declaring the same null and void, and
commanding the respondents, their agents or representatives to return to petitioners herein, in
accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers, things and cash
moneys seized or confiscated under the search warrants in question.
In their answer, respondents-prosecutors alleged,
6
(1) that the contested search warrants are valid and
have been issued in accordance with law; (2) that the defects of said warrants, if any, were cured by
petitioners' consent; and (3) that, in any event, the effects seized are admissible in evidence against
herein petitioners, regardless of the alleged illegality of the aforementioned searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition.
However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the
papers, documents and things seized from the offices of the corporations above mentioned are
concerned; but, the injunction was maintained as regards the papers, documents and things found and
seized in the residences of petitioners herein.
7

Thus, the documents, papers, and things seized under the alleged authority of the warrants in question
may be split into two (2) major groups, namely: (a) those found and seized in the offices of the
aforementioned corporations, and (b) those found and seized in the residences of petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of
the contested warrants and of the seizures made in pursuance thereof, for the simple reason that said
corporations have their respective personalities, separate and distinct from the personality of herein
petitioners, regardless of the amount of shares of stock or of the interest of each of them in said
corporations, and whatever the offices they hold therein may be.
8
Indeed, it is well settled that the
legality of a seizure can be contested only by the party whose rights have been impaired thereby,
9
and
that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third
parties.
10
Consequently, petitioners herein may not validly object to the use in evidence against them of
the documents, papers and things seized from the offices and premises of the corporations adverted to
above, since the right to object to the admission of said papers in evidence belongs exclusively to the
corporations, to whom the seized effects belong, and may not be invoked by the corporate officers in
proceedings against them in their individual capacity.
11
Indeed, it has been held:
175

. . . that the Government's action in gaining possession of papers belonging to the corporation
did not relate to nor did it affect the personal defendants. If these papers were unlawfully seized
and thereby the constitutional rights of or any one were invaded, they were the rights of the
corporation and not the rights of the other defendants. Next, it is clear that a question of the
lawfulness of a seizure can be raised only by one whose rights have been invaded. Certainly,
such a seizure, if unlawful, could not affect the constitutional rights of defendants whose property
had not been seized or the privacy of whose homes had not been disturbed; nor could they claim
for themselves the benefits of the Fourth Amendment, when its violation, if any, was with
reference to the rights of another. Remus vs. United States (C.C.A.)291 F. 501, 511. It follows,
therefore, that the question of the admissibility of the evidence based on an alleged unlawful
search and seizure does not extend to the personal defendants but embraces only the
corporation whose property was taken. . . . (A Guckenheimer & Bros. Co. vs. United States,
[1925] 3 F. 2d. 786, 789, Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of petitioners herein, the
aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued by
this Court,
12
thereby, in effect, restraining herein Respondents-Prosecutors from using them in evidence
against petitioners herein.
In connection with said documents, papers and things, two (2) important questions need be settled,
namely: (1) whether the search warrants in question, and the searches and seizures made under the
authority thereof, are valid or not, and (2) if the answer to the preceding question is in the negative,
whether said documents, papers and things may be used in evidence against petitioners herein.1wph 1. t
Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and
that accordingly, the seizures effected upon the authority there of are null and void. In this connection,
the Constitution
13
provides:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized.
Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant
shall issue but upon probable cause, to be determined by the judge in the manner set forth in said
provision; and (2) that the warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants. Indeed, the same were
issued upon applications stating that the natural and juridical person therein named had committed a
"violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal
Code." In other words, no specific offense had been alleged in said applications. The averments thereof
with respect to the offense committed were abstract. As a consequence, it was impossible for the judges
who issued the warrants to have found the existence of probable cause, for the same presupposes the
introduction of competent proof that the party against whom it is sought has performed particular acts, or
committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the
applications involved in this case do not allege any specific acts performed by herein petitioners. It would
be the legal heresy, of the highest order, to convict anybody of a "violation of Central Bank Laws, Tariff
and Customs Laws, Internal Revenue (Code) and Revised Penal Code," as alleged in the
aforementioned applications without reference to any determinate provision of said laws or
To uphold the validity of the warrants in question would be to wipe out completely one of the most
fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the
privacy of communication and correspondence at the mercy of the whims caprice or passion of peace
officers. This is precisely the evil sought to be remedied by the constitutional provision above quoted
176

to outlaw the so-called general warrants. It is not difficult to imagine what would happen, in times of keen
political strife, when the party in power feels that the minority is likely to wrest it, even though by legal
means.
Such is the seriousness of the irregularities committed in connection with the disputed search warrants,
that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court
14
by providing
in its counterpart, under the Revised Rules of Court
15
that "a search warrant shall not issue but upon
probable cause in connection with one specific offense." Not satisfied with this qualification, the Court
added thereto a paragraph, directing that "no search warrant shall issue for more than one specific
offense."
The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to wit:
Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers,
portfolios, credit journals, typewriters, and other documents and/or papers showing all business
transactions including disbursement receipts, balance sheets and related profit and loss
statements.
Thus, the warrants authorized the search for and seizure of records pertaining to all business
transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations,
whatever their nature, thus openly contravening the explicit command of our Bill of Rights that the
things to be seized be particularly described as well as tending to defeat its major objective: the
elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even if
the searches and seizures under consideration were unconstitutional, the documents, papers and things
thus seized are admissible in evidence against petitioners herein. Upon mature deliberation, however,
we are unanimously of the opinion that the position taken in the Moncado case must be abandoned.
Said position was in line with the American common law rule, that the criminal should not be allowed to
go free merely "because the constable has blundered,"
16
upon the theory that the constitutional
prohibition against unreasonable searches and seizures is protected by means other than the exclusion
of evidence unlawfully obtained,
17
such as the common-law action for damages against the searching
officer, against the party who procured the issuance of the search warrant and against those assisting in
the execution of an illegal search, their criminal punishment, resistance, without liability to an unlawful
seizure, and such other legal remedies as may be provided by other laws.
However, most common law jurisdictions have already given up this approach and eventually adopted
the exclusionary rule, realizing that this is the only practical means of enforcing the constitutional
injunction against unreasonable searches and seizures. In the language of Judge Learned Hand:
As we understand it, the reason for the exclusion of evidence competent as such, which has
been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional
privilege. In earlier times the action of trespass against the offending official may have been
protection enough; but that is true no longer. Only in case the prosecution which itself controls
the seizing officials, knows that it cannot profit by their wrong will that wrong be repressed.
18

In fact, over thirty (30) years before, the Federal Supreme Court had already declared:
If letters and private documents can thus be seized and held and used in evidence against a
citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be
secure against such searches and seizures, is of no value, and, so far as those thus placed are
concerned, might as well be stricken from the Constitution. The efforts of the courts and their
177

officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the
sacrifice of those great principles established by years of endeavor and suffering which have
resulted in their embodiment in the fundamental law of the land.
19

This view was, not only reiterated, but, also, broadened in subsequent decisions on the same Federal
Court.
20
After reviewing previous decisions thereon, said Court held, in Mapp vs. Ohio (supra.):
. . . Today we once again examine the Wolf's constitutional documentation of the right of privacy
free from unreasonable state intrusion, and after its dozen years on our books, are led by it to
close the only courtroom door remaining open to evidence secured by official lawlessness in
flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that
very same unlawful conduct. We hold that all evidence obtained by searches and seizures in
violation of the Constitution is, by that same authority, inadmissible in a State.
Since the Fourth Amendment's right of privacy has been declared enforceable against the States
through the Due Process Clause of the Fourteenth, it is enforceable against them by the same
sanction of exclusion as it used against the Federal Government. Were it otherwise, then just as
without the Weeks rule the assurance against unreasonable federal searches and seizures
would be "a form of words," valueless and underserving of mention in a perpetual charter of
inestimable human liberties, so too, without that rule the freedom from state invasions of privacy
would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from
all brutish means of coercing evidence as not to permit this Court's high regard as a freedom
"implicit in the concept of ordered liberty." At the time that the Court held in Wolf that the
amendment was applicable to the States through the Due Process Clause, the cases of this
Court as we have seen, had steadfastly held that as to federal officers the Fourth Amendment
included the exclusion of the evidence seized in violation of its provisions. Even Wolf "stoutly
adhered" to that proposition. The right to when conceded operatively enforceable against the
States, was not susceptible of destruction by avulsion of the sanction upon which its protection
and enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthorne
Cases. Therefore, in extending the substantive protections of due process to all constitutionally
unreasonable searches state or federal it was logically and constitutionally necessarily that
the exclusion doctrine an essential part of the right to privacy be also insisted upon as an
essential ingredient of the right newly recognized by the Wolf Case. In short, the admission of
the new constitutional Right by Wolf could not tolerate denial of its most important constitutional
privilege, namely, the exclusion of the evidence which an accused had been forced to give by
reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its
privilege and enjoyment. Only last year the Court itself recognized that the purpose of the
exclusionary rule to "is to deter to compel respect for the constitutional guaranty in the only
effectively available way by removing the incentive to disregard it" . . . .
The ignoble shortcut to conviction left open to the State tends to destroy the entire system of
constitutional restraints on which the liberties of the people rest. Having once recognized that the
right to privacy embodied in the Fourth Amendment is enforceable against the States, and that
the right to be secure against rude invasions of privacy by state officers is, therefore
constitutional in origin, we can no longer permit that right to remain an empty promise. Because
it is enforceable in the same manner and to like effect as other basic rights secured by its Due
Process Clause, we can no longer permit it to be revocable at the whim of any police officer who,
in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded
on reason and truth, gives to the individual no more than that which the Constitution guarantees
him to the police officer no less than that to which honest law enforcement is entitled, and, to the
courts, that judicial integrity so necessary in the true administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the
constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for a
search warrant has competent evidence to establish probable cause of the commission of a given crime
178

by the party against whom the warrant is intended, then there is no reason why the applicant should not
comply with the requirements of the fundamental law. Upon the other hand, if he has no such competent
evidence, then it is not possible for the Judge to find that there is probable cause, and, hence, no
justification for the issuance of the warrant. The only possible explanation (not justification) for its
issuance is the necessity of fishing evidence of the commission of a crime. But, then, this fishing
expedition is indicative of the absence of evidence to establish a probable cause.
Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant and/or
make unreasonable searches or seizures would suffice to protect the constitutional guarantee under
consideration, overlooks the fact that violations thereof are, in general, committed By agents of the party
in power, for, certainly, those belonging to the minority could not possibly abuse a power they do not
have. Regardless of the handicap under which the minority usually but, understandably finds itself
in prosecuting agents of the majority, one must not lose sight of the fact that the psychological and moral
effect of the possibility
21
of securing their conviction, is watered down by the pardoning power of the
party for whose benefit the illegality had been committed.
In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29, 1962,
petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey
Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be
included among the premises considered in said Resolution as residences of herein petitioners, Harry S.
Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that, furthermore, the
records, papers and other effects seized in the offices of the corporations above referred to include
personal belongings of said petitioners and other effects under their exclusive possession and control,
for the exclusion of which they have a standing under the latest rulings of the federal courts of federal
courts of the United States.
22

We note, however, that petitioners' theory, regarding their alleged possession of and control over the
aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been
Advanced, not in their petition or amended petition herein, but in the Motion for Reconsideration and
Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be
readjustment of that followed in said petitions, to suit the approach intimated in the Resolution sought to
be reconsidered and amended. Then, too, some of the affidavits or copies of alleged affidavits attached
to said motion for reconsideration, or submitted in support thereof, contain either inconsistent
allegations, or allegations inconsistent with the theory now advanced by petitioners herein.
Upon the other hand, we are not satisfied that the allegations of said petitions said motion for
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in support
of said motion, have sufficiently established the facts or conditions contemplated in the cases relied
upon by the petitioners; to warrant application of the views therein expressed, should we agree thereto.
At any rate, we do not deem it necessary to express our opinion thereon, it being best to leave the
matter open for determination in appropriate cases in the future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned;
that the warrants for the search of three (3) residences of herein petitioners, as specified in the
Resolution of June 29, 1962, are null and void; that the searches and seizures therein made are illegal;
that the writ of preliminary injunction heretofore issued, in connection with the documents, papers and
other effects thus seized in said residences of herein petitioners is hereby made permanent; that the
writs prayed for are granted, insofar as the documents, papers and other effects so seized in the
aforementioned residences are concerned; that the aforementioned motion for Reconsideration and
Amendment should be, as it is hereby, denied; and that the petition herein is dismissed and the writs
prayed for denied, as regards the documents, papers and other effects seized in the twenty-nine (29)
places, offices and other premises enumerated in the same Resolution, without special pronouncement
as to costs.
It is so ordered.
179

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.









Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 82585 November 14, 1988
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L.
MANZANAS, petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch
35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR,
THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents.
G.R. No. 82827 November 14, 1988
LUIS D. BELTRAN, petitioner,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at
Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES,
SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE
PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents.
G.R. No. 83979 November 14, 1988.
LUIS D. BELTRAN, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF
MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch
35 of the Regional Trial Court, at Manila, respondents.
180

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827
and 83979.
R E S O L U T I O N
PER CURIAM:
In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were
denied due process when informations for libel were filed against them although the finding of the
existence of a prima facie case was still under review by the Secretary of Justice and, subsequently, by
the President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC
judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if
any, to determine probable cause; and (3) whether or not the President of the Philippines, under the
Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-
affidavit.
Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary
of Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary
of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion
for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On
appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of
Justice on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May
16, 1988. With these developments, petitioners' contention that they have been denied the
administrative remedies available under the law has lost factual support.
It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law
in the preliminary investigation is negated by the fact that instead of submitting his counter- affidavits, he
filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the complaint by filing
counter-affidavits. Due process of law does not require that the respondent in a criminal case actually
file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is
that the respondent be given the opportunity to submit counter-affidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision
on the issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination nder
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized
by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination of probable cause for the
issuance of warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally
181

evaluate the report and the supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds
no probable cause, he may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for
the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this
resolution.
It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with
regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack
or excess of jurisdiction cannot be sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity
from suit impose a correlative disability to file suit." He contends that if criminal proceedings ensue by
virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for
the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an
indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would
be exposing herself to possible contempt of court or perjury.
The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise
of Presidential duties and functions free from any hindrance or distraction, considering that being the
Chief Executive of the Government is a job that, aside from requiring all of the office holder's time, also
demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the office and may be
invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an
accused in a criminal case in which the President is complainant cannot raise the presidential privilege
as a defense to prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus,
if so minded the President may shed the protection afforded by the privilege and submit to the court's
jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's
prerogative. It is a decision that cannot be assumed and imposed by any other person.
As regards the contention of petitioner Beltran that he could not be held liable for libel because of the
privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a
defense is best left to the trial court to appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on
press freedom, the Court finds no basis at this stage to rule on the point.
The petitions fail to establish that public respondents, through their separate acts, gravely abused their
discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for
cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the
part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827
and 83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated
April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.
182

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Grio-Aquino Medialdea and Regalado, JJ., concur.








Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 81756 October 21, 1991
NICOMEDES SILVA @ " Comedes", MARLON SILVA, @ "Tama" and ANTONIETA SILVA,
petitioners,
vs.
THE HONORABLE PRESIDING JUDGE, REGIONAL TRIAL COURT OF NEGROS ORIENTAL,
BRANCH XXXIII, DUMAGUETE CITY, respondent.
Marcelo G. Flores for petitioners.
FERNAN, C.J .:p
In this special civil action for certiorari, petitioners seek the nullification of Search Warrant No. 1 issued
by respondent Judge as well as the return of the money in the amount of P1,231.00 seized from
petitioner Antonieta Silva.
The antecedent facts are as follows:
On June 13, 1986, M/Sgt. Ranulfo Villamor, Jr., as chief of the PC Narcom Detachment in Dumaguete
City, Negros Oriental, filed an "Application for Search Warrant" with the Regional Trial Court, Branch
XXXIII, Dumaguete City against petitioners Nicomedes Silva and Marlon Silva. 1 This application was
accompanied by a "Deposition of Witness" executed by Pfc. Arthur M. Alcoran and Pat. Leon T. Quindo,
also dated June 13, 1986. 2
On the same day. Judge Nickarter A. Ontal, then Presiding Judge of the Regional Trial Court, Branch
XXXIII, Dumaguete City, pursuant to the said "Application for Search Warrant" and "Deposition of
Witness", issued Search Warrant No. 1, directing the aforesaid police officers to search the room of
Marlon Silva in the residence of Nicomedes Silva for violation of Republic Act No. 6425, otherwise
183

known as the Dangerous Drugs Act of 1972. as amended. Pertinent portions of Search Warrant No. 1
read as follows:
It appearing to the satisfaction of the undersigned after examining oath (sic) MSGT.
Ranulfo T. Villamor, Jr. and his witnesses (sic) Pfc. Arthur M. Alcoran and Pat. Leon T.
Quindo that there is probable cause to believe that possession and control of Marijuana
dried leaves, cigarettes, joint has been committed or is about to be committed and that
there are good and sufficient reasons to believe that marijuana dried leaves, cigarettes,
joint has in possession and/or control at Tama's Room (Rgt. side lst Floor) located at
Nono-Limbaga Drive, Tanjay, Neg. Or. which is/are:
X (Subject of the offense stated above
(Stolen or embezzled or other proceeds of fruits of the offense;
X (Used or intended to be used as means of committing an offense.
You are hereby commanded to make an immediate search at any time of the day (night)
of the room of Tama Silva residence of his father Comedes Silva to open (sic) aparadors,
lockers, cabinets, cartoons, containers, forthwith seize and take possession of the
following property Marijuana dried leaves, cigarettes, joint and bring the said property to
the undersigned to be dealt with as the law directs. 3
In the course of the search, the serving officers also seized money belonging to Antonieta Silva in the
amount of P1,231.40.
On June 16, 1986, Antonieta Silva filed a motion for the return of the said amount on the grounds that
the search warrant only authorized the serving officers to seize marijuana dried leaves, cigarettes and
joint, and that said officers failed or refused to make a return of the said search warrant in gross violation
of Section 11, Rule 126 of the Rules of Court. 4
Acting on said motion, Judge Ontal issued an Order dated July 1, 1986, stating that the court "holds in
abeyance the disposition of the said amount of P1,231.40 pending the filing of appropriate charges in
connection with the search warrant." 5
On July 28, 1987, petitioners filed a motion to quash Search Warrant No. 1 on the grounds that (1) it was
issued on the sole basis of a mimeographed "Application for Search Warrant" and "Deposition of
Witness", which were accomplished by merely filling in the blanks and (2) the judge failed to personally
examine the complainant and witnesses by searching questions and answers in violation of Section 3,
Rule 126 of the Rules of Court. 6
On August 11, 1987, respondent trial court, through Judge Eugenio M. Cruz, who, by then, had replaced
retired Judge Ontal, issued an Order denying the motion for lack of merit, finding the requisites
necessary for the issuance of a valid search warrant duly complied with. 7
A motion for reconsideration dated September 1, 1987 filed by petitioners was likewise denied by Judge
Cruz in an order dated October 19, 1987.
Hence, this special civil action for certiorari.
Petitioners allege that the issuance of Search Warrant No. 1 was tainted with illegality and that
respondent Judge should be viewed to have acted without or in excess of jurisdiction, or committed
grave abuse of discretion amounting to lack of jurisdiction when he issued the Order dated August 11,
1987, denying their motion to quash Search Warrant No, 1.
184

We rule for petitioners.
Section 2, Article III (Bill of Rights) of the 1987 Constitution guarantees the right to personal liberty and
security of homes against unreasonable searches and seizures. This section provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
The purpose of the constitutional provision against unlawful searches and seizures is to prevent
violations of private security in person and property, and unlawful invasion of the sanctity of the home,
by officers of the law acting under legislative or judicial sanction, and to give remedy against such
usurpations when attempted. 8
Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for the requisites for the issuance of a
search warrant, to wit:
SEC. 3. Requisite for issuing search warrant. A search warrant shall not issue but
upon probable cause in connection with one specific offense to be determined personally
by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the
things to be seized.
SEC. 4. Examination of complainant; record. The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in writing
and under oath the complainant and any witnesses he may produce on facts personally
known to them and attach to the record their sworn statements together with any
affidavits submitted.
Based on the aforecited constitutional and statutory provisions, the judge must, before issuing a search
warrant, determine whether there is probable cause by examining the complainant and witnesses
through searching questions and answers.
In the case of Prudente vs. Dayrit, G.R. No. 82870, December 14, 1989, 180 SCRA 69, 767 this Court
defined "probable cause" as follows:
The "probable cause" for a valid search warrant, has been defined "as such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that
an offense has been committed, and that objects sought in connection with the offense
are in the place sought to be searched". This probable cause must be shown to be within
the personal knowledge of the complainant or the witnesses he may produce and not
based on mere hearsay.
In the case at bar, we have carefully examined the questioned search warrant as well as the "Application
for Search Warrant" and "Deposition of Witness", and found that Judge Ontal failed to comply with the
legal requirement that he must examine the applicant and his witnesses in the form of searching
questions and answers in order to determine the existence of probable cause. The joint "Deposition of
Witness" executed by Pfc. Alcoran and Pat. Quindo, which was submitted together with the "Application
for Search Warrant" contained, for the most part suggestive questions answerable by merely placing
"yes" or "no" in the blanks provided thereon. In fact there were only four (4) questions asked, to wit:
185

Q Do you personally know M/Sgt. Ranulfo Villamor, Jr. the applicant for a
search warrant?
A Yes, sir.
Q Do you have personal knowledge that the said premises subject of the
offense stated above, and other proceeds of fruit of the offense, used or
obtain (sic) or intended to be used as means of committing an offense?
A Yes, sir.
Q Do you know personally who is/are the person who has/have the
property in his/their possession and control?
A Yes, sir.
Q How did you know all this (sic) things?
A Through discreet surveillance. 9
The above deposition did not only contain leading questions but it was also very broad. The questions
propounded to the witnesses were in fact, not probing but were merely routinary. The deposition was
already mimeogragphed and all that the witnesses had to do was fill in their answers on the blanks
provided.
In the case of Nolasco vs. Pao, G.R. No. 69803, October 8, 1985, 139 SCRA 152, 163, this Court held:
The "probable cause" required to justify the issuance of a search warrant comprehends
such facts and circumstances as will induce a cautious man to rely upon them and act in
pursuant thereof. Of the 8 questions asked, the 1st, 2nd and 4th pertain to identity. The
3rd and 5th are leading not searching questions. The 6th, 7th and 8th refer to the
description of the personalities to be seized, which is identical to that in the Search
Warrant and suffers from the same lack of particularity. The examination conducted was
general in nature and merely repetitious of the deposition of said witness. Mere
generalization will not suffice and does not satisfy the requirements or probable cause
upon which a warrant may issue.
Likewise, in the Prudente case cited earlier, this Court declared the search warrant issued as invalid due
to the failure of the judge to examine the witness in the form of searching questions and answers.
Pertinent portion of the decision reads:
Moreover, a perusal of the deposition of P/Lt. Florencio Angeles shows that it was too
brief and short. Respondent Judge did not examine him "in the form of searching
questions and answers". On the contrary, the questions asked were leading as they
called for a simple "yes" or "no" answer. As held in Quintero vs. NBI, "the questions
propounded by respondent Executive Judge to the applicant's witness' are not
sufficiently searching to establish probable cause. Asking of leading questions to the
deponent in an application for search warrant, and conducting of examination in a
general manner, would not satisfy the requirements for issuance of a valid search
warrant. 10
Thus, in issuing a search warrant, the judge must strictly comply with the constitutional and statutory
requirement that he must determine the existence of probable cause by personally examining the
applicant and his witnesses in the form of searching questions and answers. His failure to comply with
186

this requirement constitutes grave abuse of discretion. As declared in Marcelo vs. De Guzman, G.R. No.
L-29077, June 29, 1982, 114 SCRA 657, "the capricious disregard by the judge in not complying with the
requirements before issuance of search warrants constitutes abuse of discretion".
The officers implementing the search warrant clearly abused their authority when they seized the money of
Antonieta Silva. This is highly irregular considering that Antonieta Silva was not even named as one of the
respondents, that the warrant did not indicate the seizure of money but only of marijuana leaves, cigarettes
and joints, and that the search warrant was issued for the seizure of personal property (a) subject of the
offense and (b) used or intended to be used as means of committing an offense and NOT for personal
property stolen or embezzled or other proceeds of fruits of the offense. Thus, the then presiding Judge Ontal
likewise abused his discretion when he rejected the motion of petitioner Antonieta Silva seeking the return of
her seized money.
WHEREFORE, the petition is granted. Search Warrant No. 1 is hereby declared null and void. Respondent
Judge of the Regional Trial Court of Negros Oriental, Branch XXXIII is directed to order the return to petitioner
Antonieta Silva of the amount of P1,231.40 which had earlier been seized from her by virtue of the illegal
search warrant. This decision is immediately executory. No costs.
SO ORDERED. Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-22196 June 30, 1967
ESTEBAN MORANO, CHAN SAU WAH and FU YAN FUN, petitioners-appellants,
vs.
HON. MARTINIANO VIVO in his capacity as Acting Commissioner of Immigration, respondent-
appellant.
Engracio Fabre Law Office for petitioners-appellants.
Office of the Solicitor General Arturo A. Alafriz and Solicitor A. M. Amores for respondent-appellant.
SANCHEZ, J .:
Chan Sau Wah, a Chinese citizen born in Fukien, China on January 6, 1932, arrived in the Philippines
on November 23, 1961 to visit her cousin, Samuel Lee Malaps. She left in mainland China two of her
children by a first marriage: Fu Tse Haw and Fu Yan Kai With her was Fu Yan Fun, her minor son also
by the first marriage, born in Hongkong on September 11, 1957.
Chan Sau Wah and her minor son Fu Yan Fun were permitted only into the Philippines under a
temporary visitor's visa for two (2) months and after they posted a cash bond of P4,000.00.
On January 24, 1962, Chan Sau Wah married Esteban Morano, a native-born Filipino citizen. Born to
this union on September 16, 1962 was Esteban Morano, Jr.
To prolong their stay in the Philippines, Chan Sau Wah and Fu Yan Fun obtained several extensions.
The last extension expired on September 10, 1962.1wph 1. t
187

In a letter dated August 31, 1962, the Commissioner of Immigration ordered Chan Sau Wah and her
son, Fu Yan Fun, to leave the country on or before September 10, 1962 with a warning that upon failure
so to do, he will issue a warrant for their arrest and will cause the confiscation of their bond.
Instead of leaving the country, on September 10, 1962, Chan Sau Wah (with her husband Esteban
Morano) and Fu Yan Fun petitioned the Court of First Instance of Manila for mandamus to compel the
Commissioner of Immigration to cancel petitioners' Alien Certificates of Registration; prohibition to stop
the Commissioner from issuing a warrant for their arrest, and preliminary injunction to restrain the
Commissioner from confiscating their cash bond and from issuing warrants of arrest pending resolution
of this case.
1
The trial court, on November 3, 1962, issued the writ of preliminary injunction prayed for,
upon a P2,000-bond. After trial and the stipulations of facts filed by the parties, the Court of First
Instance rendered judgment, viz:
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered as follows:
(a) Granting this petition for Mandamus and Prohibition with respect to petitioner CHAN SAU
WAH, who is hereby declared a citizen of the Philippines; ordering the respondent to cancel her
Alien Certificate of Registration and other immigration papers, upon the payment of proper dues;
and declaring the preliminary injunction with respect to her permanent, prohibiting the
respondent, his representatives or subordinates from arresting and/or deporting said petitioner;
(b) Dismissing this petition with respect to petitioner FU YAN FUN, and dissolving the writ of
preliminary injunction issued herein, restraining the respondent, his representatives or
subordinates from arresting and/or deporting said petitioner;
(c) Authorizing respondent Commissioner to forfeit the bond filed by herein petitioners CHAN
SAU WAH and FU YAN FUN in the amount of P4,000.00; and
(d) Denying, for lack of merit, the prayer to declare Sec. 37 (a) of the Philippine Immigration Act
of 1940 unconstitutional;
Without pronouncement, as to costs.
Petitioners and respondent Commissioner both appealed.
We will deal with the claims of both appellants in their proper sequence.
1. The Solicitor General's brief assails the trial court's declaration that Chan Sau Wah is a citizen of the
Philippines. The court a quo took the position that "Chan Sau Wah became, by virtue of, and upon, her
marriage to Esteban Morano, a natural-born Filipino, a Filipino citizen.
2

Placed to the fore is paragraph 1, Section 15 of Commonwealth Act 473 [Revised Naturalization Act],
which reads:
Sec. 15. Effect of the naturalization on wife children. Any woman who is now or may hereafter
be married to a citizen of the Philippines, and who might herself be lawfully naturalized shall be
deemed a citizen of the Philippines.
To apply this provision, two requisites must concur: (a) valid marriage of an alien woman to a citizen of
the Philippines and (b) the alien woman herself might be lawfully naturalized.
We may concede that the first requisite has been properly met. The validity of the marriage is presumed.
188

But can the same be said of the second requisite? This question by all means is not new. In a series of
cases, this Court has declared that the marriage of an alien woman to a Filipino citizen does not ipso
facto make her a Filipino citizen. She must satisfactorily show that she has all the qualifications and
none of the disqualifications required by the Naturalization Law.
3
Ly Giok Ha alias Wy Giok Ha et al. vs.
Emilio Galang, L-21332, March 18, 1966,
*
clearly writes down the philosophy behind the rule in the
following expressive language, viz:
Reflection will reveal why this must be so. The qualifications prescribed under section 2 of the
Naturalization Act, and the disqualifications enumerated in its section 4, are not mutually
exclusive; and if all that were to be required is that the wife of a Filipino be not disqualified under
section 4, the result might well be that citizenship would be conferred upon persons in violation
of the policy of the statute. For example, section 4 disqualifies only
"(c) Polygamists or believers in the practice of polygamy; and
(b) Persons convicted of crimes involving moral turpitude,"
so that a blackmailer, or a maintainer of gambling or bawdy houses, not previously convicted by
a competent court, would not be thereby disqualified; still it is certain that the law did not intend
such a person to, be admitted as a citizen in view of the requirement of section 2 that an
applicant for citizenship "must be of good moral character."
Similarly, the citizen's wife might be a convinced believer in racial supremacy, in government by
certain selected classes, in the right to vote exclusively by certain "herrenvolk," and thus
disbelieve in the principles underlying the Philippine Constitution; yet she would not be
disqualified under section 4, as long as she is not "opposed to organized government," nor
affiliated to groups "upholding or teaching doctrines opposing all organized governments," nor
"defending or teaching the necessity or propriety of violence, personal assault or assassination
for the success or predominance of their ideas." Et sic de caeteris.
Upon the principle of selective citizenship, we cannot afford to depart from the wise precept affirmed and
reaffirmed in the cases heretofore noted.
In the additional stipulation of facts of July 3, 1963, petitioners admit that Chan Sau Wah is not
possessed of all the qualifications required by the Naturalization Law.
Because of all these we are left under no doubt that petitioner Chan Sau Wah did not become a Filipino
citizen.
2. Squarely put in issue by petitioners is the constitutionality of Section 37 (a) of the Immigration Act of
1940, which reads:
Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of
Immigration or of any other officer designated by him for the purpose and deported upon the
warrant of the Commissioner of Immigration after a determination by the Board of
Commissioners of the existence of the ground for deportation as charged against the alien:
x x x x x x x x x
(7) Any alien who remains in the Philippines in violation of any limitation or condition under which
he was admitted as a nonimmigrant.
Petitioners argue that the legal precept just quoted trenches upon the constitutional mandate in Section
1 (3), Article III [Bill of Rights] of the Constitution, to wit:
189

(3) The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized.
They say that the Constitution limits to judges the authority to issue warrants of arrest and that the
legislative delegation of such power to the Commissioner of Immigration is thus violative of the Bill of
Rights.
Section 1 (3), Article III of the Constitution, we perceive, does not require judicial intervention in the
execution of a final order of deportation issued in accordance with law. The constitutional limitation
contemplates an order of arrest in the exercise of judicial power
4
as a step preliminary or incidental to
prosecution or proceedings for a given offense or administrative action, not as a measure indispensable
to carry out a valid decision by a competent official, such as a legal order of deportation, issued by the
Commissioner of Immigration, in pursuance of a valid legislation.
The following from American Jurisprudence,
5
is illuminating:
It is thoroughly established that Congress has power to order the deportation of aliens whose
presence in the country it deems hurtful. Owing to the nature of the proceeding, the deportation
of an alien who is found in this country in violation of law is not a deprivation of liberty without
due process of law. This is so, although the inquiry devolves upon executive officers, and their
findings of fact, after a fair though summary hearing, are made conclusive.
x x x x x x x x x
The determination of the propriety of deportation is not a prosecution for, or a conviction of,
crime; nor is the deportation a punishment, even though the facts underlying the decision may
constitute a crime under local law. The proceeding is in effect simply a refusal by the government
to harbor persons whom it does not want. The coincidence of local penal law with the policy of
Congress is purely accidental, and, though supported by the same facts, a criminal prosecution
and a proceeding for deportation are separate and independent.
In consequence, the constitutional guarantee set forth in Section 1 (3), Article III of the Constitution
aforesaid, requiring that the issue of probable cause be determined by a judge, does not extend to
deportation proceedings.
6

The view we here express finds support in the discussions during the constitutional convention. The
convention recognized, as sanctioned by due process, possibilities and cases of deprivation of liberty,
other than by order of a competent court.
7

Indeed, the power to deport or expel aliens is an attribute of sovereignty. Such power is planted on the
"accepted maxim of international law, that every sovereign nation has the power, as inherent in
sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions."
8

So it is, that this Court once aptly remarked that there can be no controversy on the fact that where
aliens are admitted as temporary visitors, "the law is to the effect that temporary visitors who do not
depart upon the expiration of the period of stay granted them are subject to deportation by the
Commissioner of Immigration, for having violated the limitation or condition under which they were
admitted as non-immigrants (Immigration Law, Sec. 37 (a), subsection (7); C.A. 613, as amended)."
9

And, in a case directly in point, where the power of the Commissioner to issue warrants of arrest was
challenged as unconstitutional, because "such power is only vested in a judge by Section 1, paragraph
3, Article III of our Constitution," this Court declared
190

This argument overlooks the fact that the stay of appellant Ng Hua To as temporary visitor is
subject to certain contractual stipulations as contained in the cash bond put up by him, among
them, that in case of breach the Commissioner may require the recommitment of the person in
whose favor the bond has been filed. The Commissioner did nothing but to enforce such
condition. Such a step is necessary to enable the Commissioner to prepare the ground for his
deportation under section 37 (a) of Commonwealth Act 613. A contrary interpretation would
render such power nugatory to the detriment of the State.
10

It is in this context that we rule that Section 37 (a) of the Immigration Act of 1940 is not constitutionally
proscribed.
3. A sequel to the questions just discussed is the second error set forth in the government's brief. The
Solicitor General balks at the lower court's ruling that petitioner Chan Sau Wah is entitled to permanent
residence in the Philippines without first complying with the requirements of Sections 9 and 13 of the
Immigration Act of 1940, as amended by Republic Act 503.
We first go to the law, viz:
SEC. 9 [last paragraph]
An alien who is admitted as a nonimmigrant cannot remain in the Philippines permanently. To
obtain permanent admission, a nonimmigrant alien must depart voluntarily to some foreign
country and procure from the appropriate Philippine consul the proper visa and thereafter
undergo examination by the officers of the Bureau of Immigration at a Philippine port of entry for
determination of his admissibility in accordance with the requirements of this Act.
SEC. 13. Under the conditions set forth in this Act there may be admitted into the Philippines
immigrants, termed "quota immigrants" not in excess of fifty (50) of any one nationality or without
nationality for any one calendar year, except that the following immigrants, termed "nonquota
immigrants," maybe admitted without regard to such numerical limitations.
The corresponding Philippine Consular representative abroad shall investigate and certify the
eligibility of a quota immigrant previous to his admission into the Philippines. Qualified and
desirable aliens who are in the Philippines under temporary stay may be admitted within the
quota, subject to the provisions of the last paragraph of section 9 of this Act.
(a) The wife or the husband or the unmarried child under twenty-one years of age of a Philippine
citizen, if accompanying or following to join such citizen;
(b) A child of alien parents born during the temporary visit abroad of the mother, the mother
having been previously lawfully admitted into the Philippine for permanent residence, if the child
is accompanying or coming to join a parent and applies for admission within five years from the
date of its birth;
Concededly, Chan Sau Wah entered the Philippines on a tourist-temporary visitor's visa. She is a non-
immigrant. Under Section 13 just quoted, she may therefore be admitted if she were a qualified and
desirable alien and subject to the provisions of the last paragraph of Section 9. Therefore, first, she must
depart voluntarily to some foreign country; second, she must procure from the appropriate consul the
proper visa; and third, she must thereafter undergo examination by the officials of the Bureau of
Immigration at the port of entry for determination of her admissibility in accordance with the requirements
of the immigration Act.
191

This Court in a number of cases has ruled, and consistently too, that an alien admitted as a temporary
visitor cannot change his or her status without first departing from the country and complying with the
requirements of Section 9 of the Immigration Act.
11

The gravamen of petitioners' argument is that Chan Sau Wah has, since her entry, married in Manila a
native-born Filipino, Esteban Morano. It will not particularly help analysis for petitioners to appeal to
family solidarity in an effort to thwart her deportation. Chan Sau Wah, seemingly is not one who has a
high regard for such solidarity. Proof: She left two of her children by the first marriage, both minors, in
the care of neighbors in Fukien, China.
Then, the wording of the statute heretofore adverted to is a forbidding obstacle which will prevent this
Court from writing into the law an additional provision that marriage of a temporary alien visitor to a
Filipino would ipso facto make her a permanent resident in his country. This is a field closed to judicial
action. No breadth of discretion is allowed us. We cannot insulate her from the State's power of
deportation.
Really, it would be an easy matter for an alien woman to enter the Philippines as a temporary visitor, go
through a mock marriage, but actually live with another man as husband and wife, and thereby skirt the
provisions of our immigration law. Also, a woman of undesirable character may enter this country, ply a
pernicious trade, marry a Filipino, and again throw overboard Sections 9 and 13 of the Act. Such a
flanking movement, we are confident, is impermissible.
Recently we confirmed the rule that an alien wife of a Filipino may not stay permanently without first
departing from the Philippines. Reason: Discourage entry under false pretenses.
12

The ruling of the trial court on this score should be reversed.
4. It is petitioners' turn to point as error the dismissal of the petition for mandamus and prohibition with
respect to petitioner Fu Yan Fun.
Petitioners' line of thought is this: Fu Yan Fun follows the citizenship of his mother. They cite Section 15,
paragraph 3, Commonwealth Act 473, which says that:
A foreign-born minor child, if dwelling in the Philippines at the time of the naturalization of the
parent, shall automatically become a Philippine citizen. . . .
Petitioners' position is based on the assumption that Chan Sau Wah, the mother, is a Filipino citizen. We
have held that she is not. At best, Fu Yan Fun is a step-son of Esteban Morano, husband of Chan Sau
Wah. A step-son is not a foreign-born child of the step-father. The word child, we are certain, means
legitimate child, not a step-child. We are not wanting in precedents. Thus, when the Constitution
provides that "[t]hose whose fathers are citizens of the Philippines" are citizens thereof,
13
the
fundamental charter intends "those" to apply to legitimate children.
14
In another case, the term "minor
children" or "minor child" in Section 15 of the Revised Naturalization Law refers only to legitimate
children of Filipino citizens. This Court, thru Mr. Chief Justice Roberto Concepcion, there said:
15

It is claimed that the phrases "minor children" and "minor child," used in these provisions, include
adopted children. The argument is predicated upon the theory that an adopted child is, for all
intents and purposes, a legitimate child. Whenever, the word "children" or "child" is used in
statutes, it is generally understood, however, to refer to legitimate children, unless the context of
the law and its spirit indicate clearly the contrary. Thus, for instance, when the Constitution
provides that "those whose fathers are citizens of the Philippines," and "those whose mothers
are citizens of the Philippines" who shall elect Philippine citizenship upon reaching the age of
majority, are citizens of the Philippines (Article IV, Section 1, subdivisions [3] and [4]), our
192

fundamental law clearly refers to legitimate children (Chiongbian vs. De Leon, 46 Off. Gaz.,
3652-3654; Serra v. Republic, L-4223, May 12, 1952).
At any rate, Fu Yan Fun entered the Philippines as a temporary visitor. The status of a temporary visitor
cannot be converted into, that of a permanent resident, as we have heretofore held, without first
complying with Section 9 of the Immigration Law.
5. Petitioners finally aver that the lower court erred in authorizing respondent Commissioner to forfeit the
bond filed by petitioners Chan Sau Wah and Fu Yan Fun in the amount of P4,000.00.
Here is petitioners' posture. They enjoyed their stay in the Philippines upon a bond. Now they come to
court and say that as the prescribed form of this bond was not expressly approved by the Secretary of
Justice in accordance with Section 3 of Commonwealth Act 613, which reads
SEC. 3. . . . He [Commissioner of Immigration] shall issue, subject to the approval of the
Department Head, such rules and regulations and prescribes such forms of bond, reports, and
other papers, and shall issue from time to time such instruction, not inconsistent with law, as he
shall deem best calculated to carry out the provisions of the immigration laws. . . .
that bond is void.
Reasons there are which prevent us from giving our imprimatur to this argument.
The provision requiring official approval of a bond is merely directory. "Irregularity or entire failure in this
respect does not affect the validity of the bond.
16
The reason for the rule, is found in 9 C.J., p. 26
(footnote), which reads:
(a) Reason for rule. "Statutes requiring bonds to be approved by certain officials are not for the
purpose of protecting the obligors in the bond, but are aimed to protect the public, to insure their
solvency, and to create evidence of an unimpeachable character of the fact of their execution. When
they are executed for a legal purpose, before a proper tribunal, and are in fact accepted and approved
by the officer or body, whose duty it was to approve them, it could serve no useful purpose of the law to
hold them invalid, to release all the obligors thereon, and to defeat every purpose of its execution, simply
because the fact of approval was not indorsed precisely as had been directed by the Legislature."
American Book Co. vs. Wells, 83 SW 622, 627, 26 Ky L-1159. (emphasis supplied)
And another. This bond was accepted by the government. It had been there. The form of the bond here
used is of long continued usage. If the government did not question the form of the bond at all, then we
must assume that it counted with the Secretary's approval. For the presumption is that official duty has
been legally performed.
Surely enough, equitable considerations will stop petitioners from pleading invalidity of the bond. They
offered that bond to enable them to enter and stay in this country. They enjoyed benefits therefrom.
They cannot, "in law, and good conscience, be allowed to reap the fruits" of that bond, and then jettison
the same. They are "precluded from attacking the validity" of such bond.
17

Actually, to petitioners the bond was good while they sought entry into the Philippines; they offered it as
security for the undertaking; that they "will actually depart from the Philippines" when their term of stay
expires. Now that the bond is being confiscated because they overstayed, they make an about-face and
say that such bond is null and void. They shall not profit from this inconsistent position. Their bond
should be confiscated.
Conformably to the foregoing, the judgment under review is hereby modified as follows:
193

(1) The portion thereof which reads:
(a) Granting their petition for Mandamus and Prohibition with respect to petitioner CHAN SAU
WAH, who is hereby declared a citizen of the Philippines; ordering the respondent to cancel her
Alien Certificate of Registration and other immigration papers, upon the payment of proper dues;
and declaring preliminary injunction with respect to her permanent, prohibiting the respondent,
his representatives or subordinates from arresting and/or deporting said petitioner;
is hereby reversed: and, in consequence
The petition for mandamus and prohibition with respect to petitioner Chan Sau Wah is hereby denied;
and the judgment declaring her a citizen of the Philippines, directing respondent to cancel her Alien
Certificate of Registration and other immigration papers, and declaring the preliminary injunction with
respect to her permanent, are all hereby set aside; and
(2) In all other respects, the decision appealed from is hereby affirmed.
No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon J.P., Zaldivar and Castro, J.J., concur.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82544 June 28, 1988
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF: ANDREW HARVEY, JOHN
SHERMAN and ADRIAAN VAN DEL ELSHOUT, petitioners,
vs.
HONORABLE COMMISSIONER MIRIAM DEFENSOR SANTIAGO, COMMISSION ON IMMIGRATION
AND DEPORTATION, respondent.
MELENCIO-HERRERA, J .:
A petition for Habeas Corpus.
Petitioners Andrew Harvey and John Sherman, 52 and 72 years, respectively, are both American
nationals residing at Pagsanjan, Laguna, while Adriaan Van Elshout, 58 years old, is a Dutch citizen also
residing at Pagsanjan, Laguna.
The case stems from the apprehension of petitioners on 27 February 1988 from their respective
residences by agents of the Commission on Immigration and Deportation (CID) by virtue of Mission
Orders issued by respondent Commissioner Miriam Defensor Santiago of the CID. Petitioners are
presently detained at the CID Detention Center.
Petitioners were among the twenty-two (22) suspected alien pedophiles who were apprehended after
three months of close surveillance by CID agents in Pagsanjan, Laguna. Two (2) days after
apprehension, or on 29 February 1988, seventeen (17) of the twenty-two (22) arrested aliens opted for
194

self-deportation and have left the country. One was released for lack of evidence; another was charged
not for being a pedophile but for working without a valid working visa. Thus, of the original twenty two
(22), only the three petitioners have chosen to face deportation.
Seized during petitioners apprehension were rolls of photo negatives and photos of the suspected child
prostitutes shown in salacious poses as well as boys and girls engaged in the sex act. There were also
posters and other literature advertising the child prostitutes.
The "Operation Report," on Andrew Harvey and Richard Sherman dated 29 February 1988 stated:
xxx xxx xxx
ANDREW MARK HARVEY was found together with two young boys.
RICHARD SHERMAN was found with two naked boys inside his room.
In respect of Van Den Elshout the "After Mission Report," dated 27 February 1988 read in part:
Noted:
There were two (2) children ages 14 & 16 which subject readily accepted
having been in his care and live-in for quite sometime.
On 4 March 1988, deportation proceedings were instituted against petitioners for being undesirable
aliens under Section 69 of the Revised Administrative Code (Deportation Case No. 88-13). The "Charge
Sheet" read inter alia:
Wherefore, this Office charges the respondents for deportation, as undesirable aliens, in
that: they, being pedophiles, are inimical to public morals, public health and public safety
as provided in Section 69 of the Revised Administrative Code.
On 7 March 1988, Warrants of Arrest were issued by respondent against petitioners for violation of
Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative Code On
the same date, the Board of Special Inquiry III commenced trial against petitioners.
On 14 March 1988, petitioners filed an Urgent Petition for Release Under Bond alleging that their health
was being seriously affected by their continuous detention. Upon recommendation of the Board of
Commissioners for their provisional release, respondent ordered the CID doctor to examine petitioners,
who certified that petitioners were healthy.
On 22 March 1988, petitioners filed a Petition for Bail which, however, respondent denied considering
the certification by the CID physician that petitioners were healthy. To avoid congestion, respondent
ordered petitioners' transfer to the CID detention cell at Fort Bonifacio, but the transfer was deferred
pending trial due to the difficulty of transporting them to and from the CID where trial was on-going.
On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion stating that he had "finally agreed
to a self-deportation" and praying that he be "provisionally released for at least 15 days and placed
under the custody of Atty. Asinas before he voluntarily departs the country." On 7 April 1988, the Board
of Special Inquiry III allowed provisional release of five (5) days only under certain conditions.
However, it appears that on the same date that the aforesaid Manifestation/ Motion was filed, Harvey
and his co-petitioners had already filed the present petition.
195

On 4 April 1988, as heretofore stated, petitioners availed of this Petition for a Writ of Habeas Corpus. A
Return of the Writ was filed by the Solicitor General and the Court heard the case on oral argument on
20 April 1988. A Traverse to the Writ was presented by petitioners to which a Reply was filed by the
Solicitor General.
Petitioners question the validity of their detention on the following grounds:
1) There is no provision in the Philippine Immigration Act of 1940 nor under Section 69 of the Revised
Administrative Code, which legally clothes the Commissioner with any authority to arrest and detain
petitioners pending determination of the existence of a probable cause leading to an administrative
investigation.
2) Respondent violated Section 2, Article III of the 1987 Constitution prohibiting unreasonable searches
and seizures since the CID agents were not clothed with valid Warrants of arrest, search and seizure as
required by the said provision.
3) Mere confidential information made to the CID agents and their suspicion of the activities of
petitioners that they are pedophiles, coupled with their association with other suspected pedophiles, are
not valid legal grounds for their arrest and detention unless they are caught in the act. They further
allege that being a pedophile is not punishable by any Philippine Law nor is it a crime to be a pedophile.
We reject petitioners' contentions and uphold respondent's official acts ably defended by the Solicitor
General.
There can be no question that the right against unreasonable searches and seizures guaranteed by
Article III, Section 2 of the 1987 Constitution, is available to all persons, including aliens, whether
accused of crime or not (Moncado vs. People's Court, 80 Phil. 1 [1948]. One of the constitutional
requirements of a valid search warrant or warrant of arrest is that it must be based upon probable cause.
Probable cause has been defined as referring to "such facts and circumstances antecedent to the
issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on them and
act in pursuance thereof." (People vs. Syjuco 64 Phil. 667 [1937]; Alverez vs. CFI, 64 Phil. 33 [1937]).
The 1985 Rules on Criminal Procedure also provide that an arrest wit a warrant may be effected by a
peace officer or even a private person (1) when such person has committed, actually committing, or is
attempting to commit an offense in his presence; and (2) when an offense has, in fact, been committed
and he has personal knowledge of facts indicating that the person to be arrested has committed it (Rule
113, Section 5).
In this case, the arrest of petitioners was based on probable cause determined after close surveillance
for three (3) months during which period their activities were monitored. The existence of probable cause
justified the arrest and the seizure of the photo negatives, photographs and posters without warrant (See
Papa vs. Mago, L-27360, February 28, 1968,22 SCRA 857; People vs. Court of First Instance of Rizal,
L-41686, November 17, 1980, 101 SCRA 86, cited in CRUZ, Constitutional Law, 1987 ed., p. 143).
Those articles were seized as an incident to a lawful arrest and, are therefore, admissible in evidence
(Section 12, Rule 126,1985 Rules on criminal Procedure).
But even assuming arguendo that the arrest of petitioners was not valid at its inception, the records
show that formal deportation charges have been filed against them, as undesirable aliens, on 4 March
1988. Warrants of arrest were issued against them on 7 March 1988 "for violation of Section 37, 45 and
46 of the Immigration Act and Section 69 of the Administrative Code." A hearing is presently being
conducted by a Board of Special Inquiry. The restraint against their persons, therefore, has become
legal. The Writ has served its purpose. The process of the law is being followed (Cruz vs. Montoya, L-
39823, February 25, 1975, 62 SCRA 543). "were a person's detention was later made by virtue of a
judicial order in relation to criminal cases subsequently filed against the detainee, his petition for hebeas
196

corpus becomes moot and academic" (Beltran vs. Garcia, L-49014, April 30, 1979, 89 SCRA 717). "It is
a fumdamental rule that a writ of habeas corpus will not be granted when the confinement is or has
become legal, although such confinement was illegal at the beginning" (Matsura vs. Director of Prisons,
77 Phil. 1050 [1947]).
That petitioners were not "caught in the act" does not make their arrest illegal. Petitioners were found
with young boys in their respective rooms, the ones with John Sherman being naked. Under those
circumstances the CID agents had reasonable grounds to believe that petitioners had committed
"pedophilia" defined as "psychosexual perversion involving children" (Kraft-Ebbing Psychopatia Sexualis
p. 555; Paraphilia (or unusual sexual activity) in which children are the preferred sexual object"
(Webster's Third New International Dictionary, 1971 ed., p. 1665) [Solicitor General's Return of the Writ,
on p. 101. While not a crime under the Revised Penal Code, it is behavior offensive to public morals and
violative of the declared policy of the State to promote and protect the physical, moral, spiritual, and
social well-being of our youth (Article II, Section 13, 1987 Constitution).
At any rate, the filing by petitioners of a petition to be released on bail should be considered as a waiver
of any irregularity attending their arrest and estops them from questioning its validity (Callanta v.
Villanueva, L-24646 & L-24674, June 20, 1977, 77 SCRA 377; Bagcal vs. Villaraza, L-61770, January
31, 1983, 120 SCRA 525).
The deportation charges instituted by respondent Commissioner are in accordance with Section 37(a) of
the Philippine Immigration Act of 1940, in relation to Section 69 of the Revised Administrative Code.
Section 37(a) provides in part:
(a) The following aliens shall be arrested upon the warrant of the Commissioner of
Immigration and Deportation or any other officer designated by him for the purpose and
deported upon the warrant of the Commissioner of Immigration and Deportation after a
determination by the Board of Commissioners of the existence of the ground for
deportation as charged against the alien;
xxx xxx xxx
The foregoing provision should be construed in its entirety in view of the summary and indivisible nature
of a deportation proceeding, otherwise, the very purpose of deportation proceeding would be defeated.
Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA
562). The specific constraints in both the 1935
1
and 1987
2
Constitutions, which are substantially
Identical, contemplate prosecutions essentially criminal in nature. Deportation proceedings, on the other
hand, are administrative in character. An order of deportation is never construed as a punishment. It is
preventive, not a penal process. It need not be conducted strictly in accordance with ordinary Court
proceedings.
It is of course well-settled that deportation proceedings do not constitute a criminal
action. The order of deportation is not a punishment, (Maliler vs. Eby, 264 U.S., 32), it
being merely the return to his country of an alien who has broken the conditions upon
which he could continue to reside within our borders (U.S. vs. De los Santos, 33 Phil.,
397). The deportation proceedings are administrative in character, (Kessler vs. Stracker
307 U.S., 22) summary in nature, and need not be conducted strictly in accordance with
the ordinary court proceedings (Murdock vs. Clark, 53 F. [2d], 155). It is essential,
however, that the warrant of arrest shall give the alien sufficient information about the
charges against him, relating the facts relied upon. (U.S. vs. Uhl 211 F., 628.) It is also
essential that he be given a fair hearing with the assistance of counsel, if he so desires,
before unprejudiced investigators (Strench vs. Pedaris, 55 F. [2d], 597; Ex parte Jew You
On, 16 F. [2d], 153). However, all the strict rules of evidence governing judicial
197

controversies do not need to be observed; only such as are fumdamental and essential
like the right of cross-examination. (U.S. vs. Hughes, 104 F. [2d], 14; Murdock vs. Clark,
53 F. [2d], 155.) Hearsay evidence may even be admitted, provided the alien is given the
opportunity to explain or rebut it (Morrell vs. Baker, 270 F., 577; Sercerchi vs. Ward, 27
F. Supp., 437). (Lao Tang Bun vs. Fabre 81 Phil. 682 [1948]).
The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24 SCRA 155) that "the issuance of
warrants of arrest by the Commissioner of Immigration, solely for purposes of investigation and before a
final order of deportation is issued, conflicts with paragraph 3, Section I of Article III of the Constitution"
(referring to the 1935 Constitution)
3
is not invocable herein. Respondent Commissioner's Warrant of
Arrest issued on 7 March 1988 did not order petitioners to appear and show cause why they should not
be deported. They were issued specifically "for violation of Sections 37, 45 and 46 of the Immigration Act
and Section 69 of the Revised Administrative Code." Before that, deportation proceedings had been
commenced against them as undesirable aliens on 4 March 1988 and the arrest was a step preliminary
to their possible deportation.
Section 37 of the Immigration Law, which empowers the Commissioner of Immigration to
issue warrants for the arrest of overstaying aliens is constitutional. The arrest is a stop
preliminary to the deportation of the aliens who had violated the condition of their stay in
this country. (Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA 562).
To rule otherwise would be to render the authority given the Commissioner nugatory to the detriment of
the State.
The pertinent provision of Commonwealth Act No. 613, as amended, which gives
authority to the Commissioner of Immigration to order the arrest of an alien temporary
visitor preparatory to his deportation for failure to put up new bonds required for the stay,
is not unconstitutional.
xxx xxx xxx
... Such a step is necessary to enable the Commissioner to prepare the ground for his
deportation under Section 37[al of Commonwealth Act 613. A contrary interpretation
would render such power nugatory to the detriment of the State. (Ng Hua To vs. Galang,
G. R. No. 10145, February 29, 1964, 10 SCRA 411).
"The requirement of probable cause, to be determined by a Judge, does not extend to deportation
proceedings." (Morano vs. Vivo, supra, citing Tiu Chun Hai vs. Commissioner, infra). There need be no
"truncated" recourse to both judicial and administrative warrants in a single deportation proceedings.
The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation Board (G. R. No.
10280, September 30, 1963, 9 SCRA 27 [1963]) reiterated in Vivo vs. Montesa, supra, that "under the
express terms of our Constitution (the 1935 Constitution), it is therefore even doubtful whether the arrest
of an individual may be ordered by any authority other than a judge if the purpose is merely to determine
the existence of a probable cause, leading to an administrative investigation." For, as heretofore stated,
probable cause had already been shown to exist before the warrants of arrest were issued.
What is essential is that there should be a specific charge against the alien intended to be arrested and
deported, that a fair hearing be conducted (Section 37[c]) with the assistance of counsel, if desired, and
that the charge be substantiated by competent evidence. Thus, Section 69 of the Revised Administrative
Code explicitly provides:
Sec. 69. Deportation of subject of foreign power. A subject of a foreign power residing in
the Philippines shall not be deported, expelled, or excluded from said Islands or
198

repatriated to his own country by the President of the Philippines except upon prior
investigation, conducted by said Executive or his authorized agent, of the ground upon
which such action is contemplated. In such a case the person concerned shall be
informed of the charge or charges against him and he shall be allowed not less than 3
days for the preparation of his defense. He shall also have the right to be heard by
himself or counsel, to produce witnesses in his own behalf, and to cross-examine the
opposing witnesses.
The denial by respondent Commissioner of petitioners' release on bail, also challenged by them, was in
order because in deportation proceedings, the right to bail is not a matter of right but a matter of
discretion on the part of the Commissioner of Immigration and Deportation. Thus, Section 37(e) of the
Philippine Immigration Act of 1940 provides that "any alien under arrest in a deportation proceeding may
be released under bond or under such other conditions as may be imposed by the Commissioner of
Immigration." The use of the word "may" in said provision indicates that the grant of bail is merely
permissive and not mandatory on the part of the Commissioner. The exercise of the power is wholly
discretionary (Ong Hee Sang vs. Commissioner of Immigration, L-9700, February 28,1962, 4 SCRA
442). "Neither the Constitution nor Section 69 of the Revised Administrative Code guarantees the right of
aliens facing deportation to provisional liberty on bail." (Tiu Chun Hai et al vs. Deportation Board, 104
Phil. 949 [1958]). As deportation proceedings do not partake of the nature of a criminal action, the
constitutional guarantee to bail may not be invoked by aliens in said proceedings (Ong Hee Sang vs.
Commissioner of Immigration, supra).
Every sovereign power has the inherent power to exclude aliens from its territory upon such grounds as
it may deem proper for its self-preservation or public interest (Lao Tan Bun vs. Fabre 81 Phil. 682
[1948]). The power to deport aliens is an act of State, an act done by or under the authority of the
sovereign power (In re McCulloch Dick, 38 Phil. 41 [1918]). It is a police measure against undesirable
aliens whose continued presence in the country is found to be injurious to the public good and the
domestic tranquility of the people (Forbes vs. Chuoco Tiaco et al., 16 Phil. 534 [1910]). Particularly so in
this case where the State has expressly committed itself to defend the tight of children to assistance and
special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial
to their development (Article XV, Section 3[2]). Respondent Commissioner of Immigration and
Deportation, in instituting deportation proceedings against petitioners, acted in the interests of the State.
WHEREFORE, the Petition is dismissed and the Writ of Habeas Corpus is hereby denied.
SO ORDERED.
Yap, C.J., Paras, Padilla and Sarmiento, JJ., concur.








199












Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45358 January 29, 1937
NARCISO ALVAREZ, petitioner,
vs.
THE COURT OF FIRST INSTANCE OF TAYABAS and THE ANTI-USURY BOARD, respondents.
Godofredo Reyes for petitioner.
Adolfo N. Feliciano for respondents Anti-Usury Board.
No appearance for other respondent.
IMPERIAL, J .:
The petitioner asks that the warrant of June 3, 1936, issued by the Court of First Instance of Tayabas,
ordering the search of his house and the seizure, at any time of the day or night, of certain accounting
books, documents and papers belonging to him in his residence situated in Infanta, Province of
Tayabas, as well as the order of a later date, authorizing the agents of the Anti-Usury Board to retain the
articles seized, be declared illegal and set aside, and prays that all the articles in question be returned to
him.
On the date above-mentioned, the chief of the secret service of the Anti-Usury Board, of the Department
of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of First Instance
of Tayabas, an affidavit alleging that according to reliable information, the petitioner kept in his house in
Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used by him in connection
with his activities as a money-lender charging usurious rates of interest in violation of the law. In his oath
at the and of the affidavit, the chief of the secret service stated that his answers to the questions were
200

correct to the best of his knowledge and belief. He did not swear to the truth of his statements upon his
own knowledge of the facts but upon the information received by him from a reliable person. Upon the
affidavit in question the Judge, on said date, issued the warrant which is the subject matter of the
petition, ordering the search of the petitioner's house at nay time of the day or night, the seizure of the
books and documents above-mentioned and the immediate delivery thereof to him to be disposed of in
accordance with the law. With said warrant, several agents of the Anti-Usury Board entered the
petitioner's store and residence at seven o'clock on the night of June 4, 1936, and seized and took
possession of the following articles: internal revenue licenses for the years 1933 to 1936, one ledger,
two journals, two cashbooks, nine order books, four notebooks, four checks stubs, two memorandums,
three bankbooks, two contracts, four stubs, forty-eight stubs of purchases of copra, two inventories, two
bundles of bills of lading, one bundle of credit receipts, one bundle of stubs of purchases of copra, two
packages of correspondence, one receipt book belonging to Luis Fernandez, fourteen bundles of
invoices and other papers many documents and loan contracts with security and promissory notes, 504
chits, promissory notes and stubs of used checks of the Hongkong & Shanghai Banking Corporation.
The search for and a seizure of said articles were made with the opposition of the petitioner who stated
his protest below the inventories on the ground that the agents seized even the originals of the
documents. As the articles had not been brought immediately to the judge who issued the search
warrant, the petitioner, through his attorney, filed a motion on June 8, 1936, praying that the agent Emilio
L. Siongco, or any other agent, be ordered immediately to deposit all the seized articles in the office of
the clerk of court and that said agent be declared guilty of contempt for having disobeyed the order of
the court. On said date the court issued an order directing Emilio L. Siongco to deposit all the articles
seized within twenty-four hours from the receipt of notice thereof and giving him a period of five (5) days
within which to show cause why he should not be punished for contempt of court. On June 10th,
Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion praying that the order of
the 8th of said month be set aside and that the Anti-Usury Board be authorized to retain the articles
seized for a period of thirty (30) days for the necessary investigation. The attorney for the petitioner, on
June 20th, filed another motion alleging that, notwithstanding the order of the 8th of said month, the
officials of the Anti-Usury Board had failed to deposit the articles seized by them and praying that a
search warrant be issued, that the sheriff be ordered to take all the articles into his custody and deposit
of the Anti-Usury Board be punished for contempt of court. Said attorney, on June 24th, filed an ex parte
petition alleging that while agent Emilio L. Siongco had deposited some documents and papers in the
office of the clerk of court, he had so far failed to file an inventory duly verified by oath of all the
documents seized by him, to return the search warrant together with the affidavit it presented in support
thereof, or to present the report of the proceedings taken by him; and prayed that said agent be directed
to filed the documents in question immediately. On the 25th of said month the court issued an order
requiring agent Emilio L. Siongco forthwith to file the search warrant and the affidavit in the court,
together with the proceedings taken by him, and to present an inventory duly verified by oath of all the
articles seized. On July 2d of said year, the attorney for the petitioner filed another petition alleging that
the search warrant issue was illegal and that it had nit yet been returned to date together with the
proceedings taken in connection therewith, and praying that said warrant be cancelled, that an order be
issued directing the return of all the articles seized to the petitioner, that the agent who seized them be
declared guilty of contempt of court, and that charges be filed against him for abuse of authority. On
September 10, 1936, the court issued an order holding: that the search warrant was obtained and issued
in accordance with the law, that it had been duly complied with and, consequently, should not be
cancelled, and that agent Emilio L. Siongco did not commit any contempt of court and must, therefore,
be exonerated, and ordering the chief of the Anti-Usury Board in Manila to show case, if any, within the
unextendible period of two (2) days from the date of notice of said order, why all the articles seized
appearing in the inventory, Exhibit 1, should not be returned to the petitioner. The assistant chief of the
Anti-Usury Board of the Department of Justice filed a motion praying, for the reasons stated therein, that
the articles seized be ordered retained for the purpose of conducting an investigation of the violation of
the Anti-Usury Law committed by the petitioner. In view of the opposition of the attorney for the
petitioner, the court, on September 25th, issued an order requiring the Anti-Usury Board to specify the
time needed by it to examine the documents and papers seized and which of them should be retained,
granting it a period of five (5) days for said purpose. On the 30th of said month the assistant chief of the
Anti-Usury Board filed a motion praying that he be granted ten (10) days to comply with the order of
September 25th and that the clerk of court be ordered to return to him all the documents and papers
201

together with the inventory thereof. The court, in an order of October 2d of said year, granted him the
additional period of ten(10) days and ordered the clerk of court to send him a copy of the inventory. On
October 10th, said official again filed another motion alleging that he needed sixty (60) days to examine
the documents and papers seized, which are designated on pages 1 to 4 of the inventory by Nos. 5,
1016, 23, 25, 26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, and praying that he be granted
said period of sixty (60) days. In an order of October 16th, the court granted him the period of sixty (60)
days to investigate said nineteen (19) documents. The petitioner alleges, and it is not denied by the
respondents, that these nineteen (19)documents continue in the possession of the court, the rest having
been returned to said petitioner.
I. A search warrant is an order in writing, issued in the name of the People of the Philippine
Islands, signed by a judge or a justice of the peace, and directed to a peace officer, commanding
him to search for personal property and bring it before the court (section 95, General Orders. No.
58, as amended by section 6 of Act No. 2886). Of all the rights of a citizen, few are of greater
importance or more essential to his peace and happiness than the right of personal security, and
that involves the exemption of his private affairs, books, and papers from the inspection and
scrutiny of others (In re Pacific Railways Commission, 32 Fed., 241; Interstate Commerce
Commission vs Brimson, 38 Law. ed., 1047; Broyd vs. U. S., 29 Law. ed., 746; Caroll vs. U. S.,
69 Law. ed., 543, 549). While the power to search and seize is necessary to the public welfare,
still it must be exercised and the law enforced without transgressing the constitutional rights or
citizen, for the enforcement of no statue is of sufficient importance to justify indifference to the
basis principles of government (People vs. Elias, 147 N. E., 472).
II. As the protection of the citizen and the maintenance of his constitutional right is one of the
highest duties and privileges of the court, these constitutional guaranties should be given a
liberal construction or a strict construction in favor of the individual, to prevent stealthy
encroachment upon, or gradual depreciation on, the rights secured by them(State vs. Custer
County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding
is a drastic one, it is the general rule that statutes authorizing searches and seizure or search
warrants must be strictly construed (Rose vs. St. Clair, 28 Fed., [2d], 189; Leonard vs. U. S., 6
Fed. [2d], 353; Perry vs. U. S. 14 Fed. [2d],88; Cofer vs. State, 118 So., 613).
III. The petitioner claims that the search warrant issued by the court is illegal because it has been
based upon the affidavit of agent Mariano G. Almeda in whose oath he declared that he had no
personal knowledge of the facts which were to serve as a basis for the issuance of the warrant
but that he had knowledge thereof through mere information secured from a person whom he
considered reliable. To the question "What are your reason for applying for this search warrant",
appearing in the affidavit, the agent answered: "It has been reported to me by a person whom I
consider to be reliable that there are being kept in said premises, books, documents, receipts,
lists, chits, and other papers used by him in connection with his activities as a money-lender,
charging a usurious rate of interest, in violation of the law" and in attesting the truth of his
statements contained in the affidavit, the said agent states that he found them to be correct and
true to the best of his knowledge and belief.
Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of rights, provides that
"The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place top be
searched, and the persons or things to be seized." Section 97 of General Orders, No. 58
provides that "A search warrant shall not issue except for probable cause and upon application
supported by oath particularly describing the place to be searched and the person or thing to be
seized." It will be noted that both provisions require that there be not only probable cause before
the issuance of a search warrant but that the search warrant must be based upon an application
supported by oath of the applicant ands the witnesses he may produce. In its broadest sense, an
202

oath includes any form of attestation by which a party signifies that he is bound in conscience to
perform an act faithfully and truthfully; and it is sometimes defined asan outward pledge given by
the person taking it that his attestation or promise is made under an immediate sense of his
responsibility to God (Bouvier's Law Dictionary; State vs. Jackson, 137 N. W., 1034; In re Sage,
24 Oh. Cir. Ct. [N. S.], 7; Pumphery vs. State, 122 N. W., 19; Priest vs. State, 6 N. W., 468; State
vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). The oath required must refer to the
truth of the facts within the personal knowledge of the petitioner or his witnesses, because the
purpose thereof is to convince the committing magistrate, not the individual making the affidavit
and seeking the issuance of the warrant, of the existence of probable cause (U. S. vs. Tureaud,
20 Fed., 621; U. S. vs. Michalski, 265 Fed., 8349; U. S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai
Chew, 298 Fed., 652). The true test of sufficiency of an affidavit to warrant issuance of a search
warrant is whether it has been drawn in such a manner that perjury could be charged thereon
and affiant be held liable for damages caused (State vs. Roosevelt Country 20th Jud. Dis. Ct.,
244 Pac., 280; State vs. Quartier, 236 Pac., 746).
It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution prohibits
unreasonable searches and seizure. Unreasonable searches and seizures are a menace against
which the constitutional guarantee afford full protection. The term "unreasonable search and
seizure" is not defined in the Constitution or in General Orders No. 58, and it is said to have no
fixed, absolute or unchangeable meaning, although the term has been defined in general
language. All illegal searches and seizure are unreasonable while lawful ones are reasonable.
What constitutes a reasonable or unreasonable search or seizure in any particular case is purely
a judicial question, determinable from a consideration of the circumstances involved, including
the purpose of the search, the presence or absence or probable cause, the manner in which the
search and seizure was made, the place or thing searched, and the character of the articles
procured (Go-Bart Importing Co. vs. U. S. 75 Law. ed., 374; Peru vs. U. S., 4 Fed., [2d], 881;U.
S. vs. Vatune, 292 Fed., 497; Angelo vs. U. S. 70 Law, ed., 145; Lambert vs. U. S. 282 Fed.,
413; U. S. vs. Bateman, 278 Fed., 231; Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).
In view of the foregoing and under the above-cited authorities, it appears that the affidavit, which
served as the exclusive basis of the search warrant, is insufficient and fatally defective by reason
of the manner in which the oath was made, and therefore, it is hereby held that the search
warrant in question and the subsequent seizure of the books, documents and other papers are
illegal and do not in any way warrant the deprivation to which the petitioner was subjected.
IV. Another ground alleged by the petitioner in asking that the search warrant be declared illegal
and cancelled is that it was not supported by other affidavits aside from that made by the
applicant. In other words, it is contended that the search warrant cannot be issued unless it be
supported by affidavits made by the applicant and the witnesses to be presented necessity by
him. Section 1, paragraph 3, of Article III of the Constitution provides that no warrants shall issue
but upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce. Section 98 of General Orders,
No. 58 provides that the judge or justice must, before issuing the warrant, examine under oath
the complainant and any witnesses he may produce and take their depositions in writing. It is the
practice in this jurisdiction to attach the affidavit of at least the applicant or complainant to the
application. It is admitted that the judge who issued the search warrant in this case, relied
exclusively upon the affidavit made by agent Mariano G. Almeda and that he did not require nor
take the deposition of any other witness. Neither the Constitution nor General Orders. No. 58
provides that it is of imperative necessity to take the deposition of the witnesses to be presented
by the applicant or complainant in addition to the affidavit of the latter. The purpose of both in
requiring the presentation of depositions is nothing more than to satisfy the committing
magistrate of the existence of probable cause. Therefore, if the affidavit of the applicant or
complainant is sufficient, the judge may dispense with that of other witnesses. Inasmuch as the
affidavit of the agent in this case was insufficient because his knowledge of the facts was not
personal but merely hearsay, it is the duty of the judge to require the affidavit of one or more
203

witnesses for the purpose of determining the existence of probable cause to warrant the
issuance of the search warrant. When the affidavit of the applicant of the complaint contains
sufficient facts within his personal and direct knowledge, it is sufficient if the judge is satisfied
that there exist probable cause; when the applicant's knowledge of the facts is mere hearsay, the
affidavit of one or more witnesses having a personal knowledge of the fact is necessary. We
conclude, therefore, that the warrant issued is likewise illegal because it was based only on the
affidavit of the agent who had no personal knowledge of the facts.
V. The petitioner alleged as another ground for the declaration of the illegality of the search
warrant and the cancellation thereof, the fact that it authorized its execution at night. Section 101
of General Orders, No. 58 authorizes that the search be made at night when it is positively
asserted in the affidavits that the property is on the person or in the place ordered to be
searched. As we have declared the affidavits insufficient and the warrant issued exclusively
upon it illegal, our conclusion is that the contention is equally well founded and that the search
could not legally be made at night.
VI. One of the grounds alleged by the petitioner in support of his contention that the warrant was
issued illegally is the lack of an adequate description of the books and documents to be seized.
Section 1, paragraphs 3, of Article III of the Constitution, and section 97 of General Orders, No.
58 provide that the affidavit to be presented, which shall serve as the basis for determining
whether probable cause exist and whether the warrant should be issued, must contain a
particular description of the place to be searched and the person or thing to be seized. These
provisions are mandatory and must be strictly complied with (Munch vs. U. S., 24 Fed. [2d], 518;
U. S. vs. Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs. Borkowski, 268
Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605; People vs. Mayen, 188 Cal., 237;
People vs. Kahn, 256 Ill. App., 4125); but where, by the nature of the goods to be seized, their
description must be rather generally, it is not required that a technical description be given, as
this would mean that no warrant could issue (People vs. Rubio, 57 Phil., 284; People vs. Kahn,
supra). The only description of the articles given in the affidavit presented to the judge was as
follows: "that there are being kept in said premises books, documents, receipts, lists, chits and
other papers used by him in connection with his activities as money-lender, charging a usurious
rate of interest, in violation of the law." Taking into consideration the nature of the article so
described, it is clear that no other more adequate and detailed description could have been
given, particularly because it is difficult to give a particular description of the contents thereof.
The description so made substantially complies with the legal provisions because the officer of
the law who executed the warrant was thereby placed in a position enabling him to identify the
articles, which he did.
VII. The last ground alleged by the petitioner, in support of his claim that the search warrant was
obtained illegally, is that the articles were seized in order that the Anti-Usury Board might provide
itself with evidence to be used by it in the criminal case or cases which might be filed against him
for violation of the Anti-usury Law. At the hearing of the incidents of the case raised before the
court it clearly appeared that the books and documents had really been seized to enable the
Anti-Usury Board to conduct an investigation and later use all or some of the articles in question
as evidence against the petitioner in the criminal cases that may be filed against him. The
seizure of books and documents by means of a search warrant, for the purpose of using them as
evidence in a criminal case against the person in whose possession they were found, is
unconstitutional because it makes the warrant unreasonable, and it is equivalent to a violation of
the constitutional provision prohibiting the compulsion of an accused to testify against himself
(Uy Kheytin vs. Villareal, 42 Phil,, 886; Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299
Fed., 365; U. S. vs. Madden, 297 Fed., 679; Boyd vs. U. S.,116 U. S., 116; Caroll vs. U. S., 267
U. S., 132). Therefore, it appearing that at least nineteen of the documents in question were
seized for the purpose of using them as evidence against the petitioner in the criminal
proceeding or proceedings for violation against him, we hold that the search warrant issued is
illegal and that the documents should be returned to him.
204

The Anti-Usury Board insinuates in its answer that the petitioner cannot now question the validity of the
search warrant or the proceedings had subsequent to the issuance thereof, because he has waived his
constitutional rights in proposing a compromise whereby he agreed to pay a fine of P200 for the purpose
of evading the criminal proceeding or proceedings. We are of the opinion that there was no such waiver,
first, because the petitioner has emphatically denied the offer of compromise and, second, because if
there was a compromise it reffered but to the institution of criminal proceedings fro violation of the Anti-
Usury Law. The waiver would have been a good defense for the respondents had the petitioner
voluntarily consented to the search and seizure of the articles in question, but such was not the case
because the petitioner protested from the beginning and stated his protest in writing in the insufficient
inventory furnished him by the agents.
Said board alleges as another defense that the remedy sought by the petitioner does not lie because he
can appeal from the orders which prejudiced him and are the subject matter of his petition. Section 222
of the Code of Civil Procedure in fact provides that mandamus will not issue when there is another plain,
speedy and adequate remedy in the ordinary course of law. We are of the opinion, however, that an
appeal from said orders would have to lapse before he recovers possession of the documents and
before the rights, of which he has been unlawfully deprived, are restored to him (Fajardo vs. Llorente, 6
Phil., 426; Manotoc vs. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera de Lukban vs. McMicking,
14 Phil., 641; Lamb vs. Phipps, 22 Phil., 456).
Summarizing the foregoing conclusions, we hold:
1. That the provisions of the Constitution and General Orders, No. 58, relative to search and
seizure, should be given a liberal construction in favor of the individual in order to maintain the
constitutional guaranties whole and in their full force;
2. That since the provisions in question are drastic in their form and fundamentally restrict the
enjoyment of the ownership, possession and use of the personal property of the individual, they
should be strictly construed;
3. That the search and seizure made are illegal for the following reasons: (a) Because the
warrant was based solely upon the affidavit of the petitioner who had no personal knowledge of
the facts of probable cause, and (b) because the warrant was issued for the sole purpose of
seizing evidence which would later be used in the criminal proceedings that might be instituted
against the petitioner, for violation of the Anti-Usury Law;
4. That as the warrant had been issued unreasonably, and as it does not appear positively in the
affidavit that the articles were in the possession of the petitioner and in the place indicated,
neither could the search and seizure be made at night;
5. That although it is not mandatory to present affidavits of witnesses to corroborate the
applicant or a complainant in cases where the latter has personal knowledge of the facts, when
the applicant's or complainant's knowledge of the facts is merely hearsay, it is the duty of the
judge to require affidavits of other witnesses so that he may determine whether probable cause
exists;
6. That a detailed description of the person and place to be searched and the articles to be
seized is necessary, but whereby, by the nature of the articles to be seized, their description
must be rather general, but is not required that a technical description be given, as this would
mean that no warrant could issue;
7. That the petitioner did not waive his constitutional rights because the offer of compromise or
settlement attributed to him, does not mean, if so made, that he voluntarily tolerated the search
and seizure; and
205

8. That an appeal from the orders questioned by the petitioner, if taken by him, would not be an
effective, speedy or adequate remedy in the ordinary course of law, and, consequently, the
petition for mandamus filed by him, lies.
For the foregoing considerations, the search warrant and the seizure of June 3, 1936, and the orders of
the respondent court authorizing the relation of the books and documents, are declared illegal and are
set aside, and it is ordered that the judge presiding over the Court of First Instance of Tayabas direct the
immediate return to the petitioner of the nineteen (19) documents designated on pages 1 to 4 of the
inventory by Nos. 5, 10, 16, 23, 25,26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, without
special pronouncement as to costs. So ordered.
Avancea, C.J., Villa-Real, Diaz and Concepcion, JJ., concur.




Second Division
G.R. No. L-50720, March 26, 1984

SORIANO MATA, PETITIONER, VS. HON. JOSEPHINE K. BAYONA, IN HER CAPACITY AS PRESI-
DING JUDGE OF THE CITY COURT OF ORMOC,
BERNARDO GOLES AND REYNALDO MAYOTE, RESPONDENTS.

DECISION
DE CASTRO, J.:

The validity of the search warrant issued by respondent Judge (not reappointed) is challenged by
petitioner for its alleged failure to comply with the requisites of the Constitution and the Rules of
Court.Specifically, the contention is that the search warrant issued by respondent Judge was based
merely on the application for search warrant and a joint affidavit of private respondents which were
wrongfully it is alleged subscribed, and sworn to before the Clerk of Court of respondent Judge.
Furthermore, there was allegedly a failure on the part of respondent Judge to attach the necessary
papers pertinent to the issuance of the search warrant to the records of Criminal Case No. 4298-CC
wherein petitioner is accused under PD 810, as amended by PD 1306, the information against him
alleging that Soriano Mata offered, took and arranged bets on the Jai Alai game by selling illegal tickets
known as Masiao tickets without any authority from the Philippine Jai Alai & Amusement Corporation or
from the government authorities concerned.
[1]

Petitioner claims that during the hearing of the case, he discovered that nowhere from the records of the
said case could be found the search warrant and other pertinent papers connected to the issuance of
the same, so that he had to inquire from the City Fiscal its whereabouts, and to which inquiry respondent
Judge replied, it is with the court. The Judge then handed the records to the Fiscal who attached them
to the records.

This led petitioner to file a motion to quash and annul the search warrant and for the return of the articles
seized, citing and invoking, among others, Section 4 of Rule 126 of the Revised Rules of Court. The
motion was denied by respondent Judge on March 1, 1979, stating that the Court has made a thorough
investigation and examination under oath of Bernardo U. Goles and Reynaldo T. Mayote, members of
the Intelligence Section of 352nd PC Co./Police District II INP; that in fact the court made a certification
to that effect; and that the fact that documents relating to the search warrant were not attached
206

immediately to the record of the criminal case is of no moment, considering that the rule does not specify
when these documents are to be attached to the records.
[2]
Petitioners motion for reconsideration of the
aforesaid order having been denied, he came to this Court, with the instant petition, praying, among
others, that this Court declare the search warrant to be invalid and all the articles confiscated under such
warrant as inadmissible as evidence in the case, or in any proceedings on the matter.

We hold that the search warrant is tainted with illegality for being violative of the Constitution and the
Rules of Court.


Under the Constitution no search warrant shall issue but upon probable cause to be determined by the
Judge or such other responsible officer as may be authorized by law after examination under oath or
affirmation of the complainant and the witnesses he may produce. More emphatic and detailed is the
implementing rule of the constitutional injunction, Section 4 of Rule 126 which provides that the judge
must before issuing the warrant personally examine on oath or affirmation the complainant and any
witnesses he may produce and take their depositions in writing, and attach them to the record, in
addition to any affidavits presented to him.

Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to
take depositions in writing of the complainant and the witnesses he may produce and to attach them to
the record. Such written deposition is necessary in order that the Judge may be able to properly deter-
mine the existence or non-existence of the probable cause, and to hold liable for perjury the person
giving it if it will be found later that his declarations are false.
We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform
with the essential requisites of taking the depositions in writing and attaching them to the record,
rendering the search warrant invalid.

The judges insistence that she examined the complainants under oath has become dubious by
petitioners claim that at the particular time when he examined all the relevant papers connected with the
issuance of the questioned search warrant, after he demanded the same from the lower court since they
were not attached to the records, he did not find any certification at the back of the joint affidavit of the
complainants. As stated earlier, before he filed his motion to quash the search warrant and for the return
of the articles seized, he was furnished, upon his request, certified true copies of the said affidavits by
the Clerk of Court but which certified true copies do not bear any certification at the back. Petitioner
likewise claims that his xerox copy of the said joint affidavit obtained at the outset of this case does not
show also the certification of respondent judge. This doubt becomes more confirmed by respondent
Judges own admission, while insisting that she did examine thoroughly the applicants, that she did not
take the deposition of Mayote and Goles because to have done so would be to hold a judicial
proceeding which will be open and public,
[3]
such that, according to her, the persons subject of the
intended raid will just disappear and move his illegal operations somewhere else.


Could it be that the certification was made belatedly to cure the defect of the warrant? Be that as it may,
there was no deposition in writing attached to the records of the case in palpable disregard of the
statutory prohibition heretofore quoted.

Respondent Judge impresses this Court that the urgency to stop the illegal gambling that lures every
man, woman and child, and even the lowliest laborer who could hardly make both ends meet justifies
her action. She claims that in order to abate the proliferation of this illegal masiao lottery, she thought it
more prudent not to conduct the taking of deposition which is done usually and publicly in the court
room.

Two points must be made clear. The term depositions is sometimes used in a broad sense to describe
any written statement verified by oath; but in its more technical and appropriate sense the meaning of
the word is limited to written testimony of a witness given in the course of a judicial proceeding advance
of the trial or hearing upon oral examination.
[4]
A deposition is the testimony of a witness, put or taken in
207

writing, under oath or affirmation before a commissioner, examiner or other judicial officer, in answer to
interlocutory and cross interlocutory, and usually subscribed by the witnesses.
[5]
The searching
questions propounded to the applicants of the search warrant and his witnesses must depend to a large
extent upon the discretion of the Judge just as long as the answers establish a reasonable ground to
believe the commission of a specific offense and that the applicant is one authorized by law, and said
answers particularly describe with certainty the place to be searched and the persons or things to be
seized. The examination or investigation which must be under oath may not be in public. It may even be
held in the secrecy of his chambers. Far more important is that the examination or investigation is not
merely routinary but one that is thorough and elicit the required information. To repeat, it must be under
oath and must be in writing.

The other point is that nothing can justify the issuance of the search warrant but the fulfillment of the
legal requisites. It might be well to point out what has been said in Asian Surety & Insurance Co., Inc. vs.
Herrera:

It has been said that of all the rights of a citizen, few are of greater importance or more essential to his
peace and happiness than the right of personal security, and that involves the exemption of his private
affairs, books, and papers from inspection and scrutiny of others. While the power to search and seize is
necessary to the public welfare, still it must be exercised and the law enforced without transgressing the
constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify
in difference to the basic principles of government.
[6]

Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the
Constitution and the statutory provisions. A liberal construction should be given in favor of the individual
to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the
Constitution.
[7]
No presumption of regularity are to be invoked in aid of the process when an officer
undertakes to justify it.
[8]

While We hold that the search warrant is illegal, the return of the things seized cannot be ordered. In
Castro vs. Pabalan,
[9]
it was held that the illegality of the search warrant does not call for the return of the
things seized, the possession of which is prohibited.

WHEREFORE, the writ of certiorari is granted and the order of March 1, 1979 denying the motion to
annul the search warrant as well as the order of March 21, 1979 denying the motion for reconsideration
are hereby reversed, the search warrant, being declared herein as illegal. Notwithstanding such
illegality, the things seized under such warrant, such as stock of masiao tickets; masiao issue tickets;
bet money; control pad or masiao numbers; stamping pad with rubber stamp marked Ormoc City Jai-
Alai, cannot be returned as sought by petitioner. No costs.

SO ORDERED.

Makasiar, Acting C.J., (Chairman), Concepcion, Jr. and Guerrero, JJ., concur.
Aquino and Escolin, JJ., in the result.
Abad Santos, J., no part.







208











Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 109633 July 20, 1994
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NORMANDO DEL ROSARIO Y LOPEZ, accused-appellant.
The Solicitor General for plaintiff-appellee.
Topacio and Topacio for accused-appellants.
MELO, J .:
Normando del Rosario was charged before Branch 17 of the Regional Trial Court of the Fourth Judicial
Region stationed in Cavite City with Illegal Possession of Firearm and Ammunitions in Criminal Case
No. 236-91 and Illegal Sale of Regulated Drugs in Criminal Case No. 237-91, under two informations
reading, respectively, as follows:
Criminal Case No. 236-91
That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, without
legal authority, did, then and there, willfully, unlawfully, feloniously and knowingly have in
his possession and control a homemade (paltik)caliber .22 revolver with three (3) live
ammunition.
Contrary to law.
Criminal Case No. 237-91
209

That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, without
legal authority, did, then and there, willfully, unlawfully, feloniously and knowingly sell to a
poseur buyer an aluminum foil containing Methamphetamine Hydrochloride also known
as "Shabu", a regulated drug.
Contrary to law.
(pp. 20-21, Rollo.)
Upon arraignment, accused-appellant pleaded not guilty to both charges, and after joint trial of the two
cases, the court a quo rendered a decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds the accused Normando del
Rosario y Lopez guilty beyond reasonable doubt in the above-entitled cases and he is
hereby sentenced to undergo imprisonment: in Crim. Case No. 236-91 for Violation of
P.D. 1866 of Seventeen (17) years, Four (4) months and One (1) day of reclusion
temporal, as minimum to Twenty (20) years of reclusion temporal, as maximum and in
Crim. Case No. 237-91 for a violation of Section 15, Article III of Republic Act 6425, as
amended of life imprisonment and to pay a fine of P30,000.00, without subsidiary
imprisonment in case of insolvency and to pay the costs in both cases.
The shabu, the One Hundred Peso bill and other paraphernalia are hereby ordered
confiscated in favor of the government.
(pp. 28-29, Rollo.)
From said decision, the instant appeal has been interposed.
The prosecution's version of the case, as set forth in appellee's brief, is as follows:
Upon application of SPO3 Raymundo Untiveros of the Philippine National Police (PNP)
of Cavite City, Regional Trial Court Judge Arturo de Guia issued in the morning of
September 4, 1991 a search warrant (Exh. T, p. 50, Rec. Crim. Case No. 237-91)
authorizing the search and seizure of an "undetermined quantity of Methamphetamine
Hydrochloride commonly known as shabu and its paraphernalias" in the premises of
appellant's house located at 828 R. Basa St., San Roque, Cavite City. However, the
search warrant was not implemented immediately due to the lack of police personnel to
form the raiding team (pp. 4, 7, tsn., Feb. 4, 1992).
At about 9 o'clock in the evening of that day, a raiding team was finally organized. SPO3
Untiveros headed the raiding team with PO3 Rogelio Francisco, SPO1 Eduardo Novero,
SPO3 Reynaldo de la Cruz, PO1 Carlito Barbuco, PO3 Onrubio and SPO2 Villegas as
members (pp. 5, 10, tsn., Feb. 4, 1992; p. 7, tsn., Dec. 11, 1991).
In the final briefing of the raiding team at the police station, it was agreed upon that PO1
Venerando Luna will buy shabu from appellant and after his return from appellant's
house, the raiding team will implement the search warrant (p. 10, tsn., Feb. 4, 1992; pp.
17-18, tsn., Dec. 11, 1991). A marked money consisting of a P100 bill bearing serial no.
PQ 329406 (Exh. P, p. 51, Rec.) was given by the Station Commander to PO1 Luna and
entered in the police logbook (p. 12, Feb. 4, 1992). PO1 Luna with a companion
proceeded to appellant's house to implement the search warrant. Barangay Capt.
Maigue, Norma del Rosario and appellant witnessed the search at appellant's house (p.
10, tsn., Dec. 11, 1991). SPO3 de la Cruz and PO3 Francisco found a black canister
210

containing shabu, an aluminum foil, a paltik .22 caliber (Exh. O) atop the TV set, three
used ammunitions in a cup and three wallets (Exhs. Q, R, S), one containing the marked
money (Exh. P; pp. 11-12, tsn., Dec. 11, 1992). SPO1 Novero found inside a show box
aluminum foils, napkins and a burner (p. 9, tsn., March 11, 1992). SPO3 de la Cruz
turned over the wallet containing the marked money to PO3 Onrubio (p. 8, 32, tsn., Jan.
7, 1992). The seized items were photographed thereat by Fred Agana and then turned
over to PO3 Onrubio (pp. 8, 32, tsn., Jan. 7, 1992). SPO3 Untiveros issued receipts
(Exhs. V, V-1, pp. 53-54, Rec.) for the seized items with Barangay Capt. Maigue and
appellant's sister Norma as signing witnesses. He also made a return (Exh. U, p. 52,
Rec.) of the seized items to the court (pp. 11-155, tsn., Feb. 18, 1992.).
At police station, the seized items were taped and initialed by SPO3 de la Cruz (p. 33,
tsn., Jan. 7, 1992). The next day, SPO4 Pilapil, through PO1 Barbuco, forwarded to NBI
Forensic Chemist Mary Ann Aranas for laboratory analysis the aluminum foil (Exhs. A, J,
pp. 37, 46, Rec.) containing suspected shabu bought by PO1 Luna from appellant in the
buy-bust operation as well as the aluminum foils (Exhs. G, K, pp. 43, 47, Rec.)
containing suspected marijuana which were confiscated by virtue of the search warrant.
The findings of NBI Forensic Chemist Aranas disclosed that all the specimen submitted
to her for laboratory analysis by SPO1 Pilapil, thru PO1 Barbuco, gave positive results
for Methamphetamine Hydrochloride (pp. 2-9, tsn., Dec. 3, 1991; Exh. B, C, H, I, pp. 38,
39, 44, 45, Rec.).
(pp. 102-105, Rollo.)
Carefully evaluating the evidence on record, we believe that the prosecution has failed to prove the guilt
of accused-appellant. Much is to be desired in the manner the police authorities effected the arrest of
accused-appellant and the same observation may be made with regard to the way the prosecution
conducted its case.
Foremost among the inadequacies of the prosecution is its failure to call to the witness stand PO1
Venerando Luna, the alleged poseur-buyer. There is, thus, a total absence of evidence to establish the
purported sale of shabu by accused-appellant to Venerando Luna, the supposed poseur-buyer. The
omission to present the poseur-buyer casts serious doubts that an illegal sale of a dangerous drug
actually took place.
The trial court gave much weight to the testimonies of the police members of the buy-
bust operation. However, the prosecution did not present as witness the supposed
poseur-buyer. Such omission casts serious doubt on appellant's guilt because without
the testimony of the poseur-buyer, there is no convincing evidence to show that
appellant sold marijuana. The testimonies of the rest of the buy-bust operation are
hearsay in view of the fact that the poseur-buyer, was never presented at the trial. There
was even no testimony that when the accused-appellant handed the stuff to the poseur-
buyer that the latter in turn handed the marked money. The failure of the prosecution to
present the alleged buyer of the marijuana was a fatal flaw in the case against the
accused.
(People vs. Fulgarillas, 212 SCRA 76, 80 [1992])
The testimony of prosecution witness PO3 Rogelio Francisco that Veneracion Luna, the alleged Poseur-
buyer, bought shabu from accused-appellant was derived solely from what Luna supposedly told him
(pp. 19-20, tsn., December 11, 1991) and, therefore, is patently hearsay evidence, without any
evidentiary weight whatsoever. Likewise, the statements of prosecution witnesses Policemen Reynaldo
211

de la Cruz, Raymundo Untiveros, and Eduardo Novera, Jr. as to the alleged sale of shabu are hearsay,
without weight, as all of them were not present during the alleged sale.
According to the version of the prosecution, during the alleged buy-bust operation, accused-appellant
handed over to Veneracion Luna, the alleged poseur-buyer, a quantity of shabu, and Luna in turn paid
accused-appellant a marked P100 bill and then returned to the police station and informed the raiding
team that he had already bought the shabu from accused-appellant. Thereupon, the raiding team
proceeded to the house of accused-appellant to implement the search warrant. The version of the
prosecution is highly incredible. The record is devoid of any reason why the police officers did not make
any attempt to arrest accused-appellant at the time he allegedly sold the shabu to Veneracion Luna who
was accompanied by another police officer. That was the opportune moment to arrest accused-
appellant. The version foisted by the prosecution upon this Court is contrary to human experience in the
ordinary course of human conduct. The usual procedure in a buy-bust operation is for the police officers
to arrest the pusher of drugs at the very moment he hands over the dangerous drug to the poseur-buyer.
That is the very reason why such a police operation is called a "buy-bust" operation. The police poseur-
buyer "buys" dangerous drugs from the pusher and "busts" (arrests) him the moment the pusher hands
over the drug to the police officer.
We thus entertain serious doubts that the shabu contained in a small canister was actually seized or
confiscated at the residence of accused-appellant. In consequence, the manner the police officers
conducted the subsequent and much-delayed search is highly irregular. Upon bargaining into the
residence of accused-appellant, the police officers found him lying down and they immediately arrested
and detained him in the living room while they searched the other parts of the house. Although they
fetched two persons to witness the search, the witnesses were called in only after the policemen had
already entered accused-appellant's residence (pp. 22-23, tsn, December 11, 1991), and, therefore, the
policemen had more than 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 proved (Sec.
14(2), Article III, Constitution of the Republic of the Philippines) is the rule that in order to convict an
accused the circumstances of the case must exclude all and each and every hypothesis consistent with
his innocence (People vs. Tanchoco; 76 Phil. 463 [1946]; People vs. Constante, 12 SCRA 653 [1964];
People vs. Jara, 144 SCRA 516 [1986]). The facts of the case do not rule out the hypothesis that
accused- appellant is innocent.
At any rate, accused-appellant cannot be convicted of possession of the shabu contained in a canister and
allegedly seized at his house, for the charge against him was for selling shabu with the information alleging
that the "accused, without legal authority did . . . sell to a poseur buyer an aluminum foil containing
Methamphetamine Hydrochloride . . ." Sale is totally different from possession. Article 1458 of the Civil Code
defines sale as a contract whereby "one of the contracting parties obligates himself to transfer the ownership
of and to deliver a determine thing, and the other to pay therefor a price certain in money or its equivalent",
while "possession is the holding of a thing or the enjoyment of a right" as defined by Article 523 of the Civil
Code. Accused-appellant cannot be convicted of a crime which is not charged in the information for to do so
would deny him the due process of law (People vs. Despavellador, 1 SCRA 205 [1961]; People vs. Mori, 55
SCRA 382 [1974]).
Neither can accused-appellant be convicted of illegal possession of firearm and ammunition. The search
warrant implemented by the raiding party authorized only the search and seizure of ". . . the described
quantity of Methamphetamine Hydrochloride commonly known as shabu and its paraphernalia" (Exh. O, p.
50, original record). Thus, the raiding party was authorized to seize only shabu and paraphernalia for the use
thereof and no other. A search warrant is not a sweeping authority empowering a raiding party to undertake a
finishing expedition to seize and confiscate any and all kinds of evidence or articles relating to a crime. The
Constitution itself (Section 2, Article III) and the Rules of Court (Section 3, Rule 126) specifically mandate that
the search warrant must particularly describe the things to be seized. Thus, the search warrant was no
authority for the police officers to seize the firearm which was not mentioned, much less described with
particularity, in the search warrant. Neither may it be maintained that the gun was seized in the course of an
arrest, for as earlier observed, accused-appellant's arrest was far from regular and legal. Said firearm, having
212

been illegally seized, the same is not admissible in evidence (Stonehill vs. Diokno, 20 SCRA 383 [1967]). The
Constitution expressly ordains the exclusion in evidence of illegally seized articles.
Any evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding. (Section 3[2], Article III, Constitution of the Republic of the
Philippines).
With the exclusion in evidence of the illegally seized firearm, there is, therefore, a total absence of evidence to
support the charge of illegal possession of firearm, against accused-appellant.
The same may be said of the charge of illegal possession of ammunition.
WHEREFORE, the decision appealed from is hereby REVERSED and accused-appellant is hereby
ACQUITTED in Criminal Case No. 236-91 and Criminal Case No. 237-91.
The immediate release of accused-appellant is hereby ordered unless there exists a pending valid cause
against him. The shabu, the marked P100 bill, firearm, and ammunition are hereby ordered confiscated in
favor of the government. SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81567 July 9, 1990
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO
DURAL and RENATO VILLANUEVA. MANOLITA O. UMIL, and NICANOR P. DURAL, FELICITAS V.
SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN.
ALEXANDER AGUIRRE, respondents.
G.R. Nos. 84581-82 July 9, 1990
AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,
vs.
GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents.
G.R. Nos. 84583-84 July 9, 1990
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO
and RAMON CASIPLE. DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO, LT. COL. REX D.
PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-
INP Detention Center, Camp Crame, Quezon City, respondents.
G.R. No. 83162 July 9, 1990
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND
DANNY RIVERA. VIRGILIO A. OCAYA, petitioner,
vs.
213

BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO,
respondents.
G.R. No. 85727 July 9, 1990
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS ESPIRITU,
petitioner,
vs.
BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents.
G.R. No. 86332 July 9, 1990
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO.
ALFREDO NAZARENO, petitioner,
vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro
Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT.
MAURO AROJADO, respondents.
Efren H. Mercado for petitioners in G.R. No. 81567.
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82.
Ramon S. Esguerra, Barbara Anne C. Migallos and Agripino G. Morga for petitioners in G.R. Nos.
84583-84.
Efren H. Mercado for petitioner in G.R. No. 83162.
Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Association for petitioner in G.R. No. 85727.
Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332.
The Solicitor General for the respondents.
PER CURIAM:
The are eight (8) petitioners for habeas corpus filed before the Court, which have been consolidated
because of the similarity of issues raised, praying for the issuance of the writ of habeas corpus, ordering
the respective respondents to produce the bodies of the persons named therein and to explain why they
should not be set at liberty without further delay.
In their respective Returns, the respondents uniformly assert that the privilege of the writ of habeas
corpus is not available to the petitioners as they have been legally arrested and are detained by virtue of
valid informations filed in court against them.
The petitioners counter that their detention is unlawful as their arrests were made without warrant and,
that no preliminary investigation was first conducted, so that the informations filed against them are null
and void.
The Court has carefully reviewed the contentions of the parties in their respective pleadings, and it finds
that the persons detained have not been illegally arrested nor arbitrarily deprived of their constitutional
right to liberty, and that the circumstances attending these cases do not warrant their release on habeas
corpus.
The arrest of a person without a warrant of arrest or previous complaint is recognized in law. The
occasions or instances when such an arrest may be effected are clearly spelled out in Section 5, Rule
113 of the Rules of Court, as amended, which provides:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may,
without a warrant, arrest a person:
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(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7.
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of Rule 113 of the Rules of
Court, as amended, is justified when the person arrested is caught in flagranti delicto, viz., in the act of
committing an offense; or when an offense has just been committed and the person making the arrest
has personal knowledge of the facts indicating that the person arrested has committed it. The rationale
behind lawful arrests, without warrant, was stated by this Court in the case of People vs. Kagui
Malasugui
1
thus:
To hold that no criminal can, in any case, be arrested and searched for the evidence and
tokens of his crime without a warrant, would be to leave society, to a large extent, at the
mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating
their escape in many instances.
The record of the instant cases would show that the persons in whose behalf these petitions for habeas
corpus have been filed, had freshly committed or were actually committing an offense, when
apprehended, so that their arrests without a warrant were clearly justified, and that they are, further,
detained by virtue of valid informations filed against them in court.
A brief narration of the facts and events surrounding each of the eight (8) petitions is in order.
I
In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988, the Regional
Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM) received confidential information
about a member of the NPA Sparrow Unit (liquidation squad) being treated for a gunshot wound at the
St. Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification, it was found that the wounded
person, who was listed in the hospital records as Ronnie Javelon, is actually Rolando Dural, a member
of the NPA liquidation squad, responsible for the killing of two (2) CAPCOM soldiers the day before, or
on 31 January 1988, in Macanining Street, Bagong Barrio, Caloocan City. In view of this verification,
Rolando Dural was transferred to the Regional Medical Services of the CAPCOM, for security reasons.
While confined thereat, or on 4 February 1988, Rolando Dural was positively identified by eyewitnesses
as the gunman who went on top of the hood of the CAPCOM mobile patrol car, and fired at the two (2)
CAPCOM soldiers seated inside the car identified as T/Sgt. Carlos Pabon and CIC Renato Manligot.
As a consequence of this positive identification, Rolando Dural was referred to the Caloocan City Fiscal
who conducted an inquest and thereafter filed with the Regional Trial Court of Caloocan City an
information charging Rolando Dural alias Ronnie Javelon with the crime of "Double Murder with Assault
Upon Agents of Persons in Authority." The case was docketed therein as Criminal Case No. C-30112
and no bail was recommended. On 15 February 1988, the information was amended to include, as
defendant, Bernardo Itucal, Jr. who, at the filing of the original information, was still unidentified.
215

Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this Court on behalf of
Roberto Umil, Rolando Dural, and Renato Villanueva. The Court issued the writ of habeas corpus on 9
February 1988 and the respondents filed a Return of the Writ on 12 February 1988. Thereafter, the
parties were heard on 15 February 1988.
On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail before the Regional
Trial Court of Pasay City where charges for violation of the Anti-Subversion Act had been filed against
them, and they were accordingly released. The petition for habeas corpus, insofar as Umil and
Villanueva are concerned, is now moot and academic and is accordingly dismissed, since the writ of
habeas corpus does not lie in favor of an accused in a criminal case who has been released on bail.
2

As to Rolando Dural, it clearly appears that he was not arrested while in the act of shooting the two (2)
CAPCOM soldiers aforementioned. Nor was he arrested just after the commission of the said offense for
his arrest came a day after the said shooting incident. Seemingly, his arrest without warrant is
unjustified.
However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an
outlawed subversive organization. Subversion being a continuing offense, the arrest of Rolando Dural
without warrant is justified as it can be said that he was committing an offense when arrested. The
crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses
committed in furtherance thereof or in connection therewith constitute direct assaults against the State
and are in the nature of continuing crimes. As stated by the Court in an earlier case:
From the facts as above-narrated, the claim of the petitioners that they were initially
arrested illegally is, therefore, without basis in law and in fact. The crimes of insurrection
or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes
and offenses committed in the furtherance, on the occasion thereof, or incident thereto,
or in connection therewith under Presidential Proclamation No. 2045, are all in the nature
of continuing offenses which set them apart from the common offenses, aside from their
essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the
arrest of the herein detainees was well within the bounds of the law and existing
jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion whether as its fighting armed elements,
or for committing non-violent acts but in furtherance of the rebellion, is more an act of
capturing them in the course of an armed conflict, to quell the rebellion, than for the
purpose of immediately prosecuting them in court for a statutory offense. The arrest,
therefore, need not follow the usual procedure in the prosecution of offenses which
requires the determination by a judge of the existence of probable cause before the
issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable.
Obviously, the absence of a judicial warrant is no legal impediment to arresting or
capturing persons committing overt acts of violence against government forces, or any
other milder acts but equally in pursuance of the rebellious movement. The arrest or
capture is thus impelled by the exigencies of the situation that involves the very survival
of society and its government and duly constituted authorities. If killing and other acts of
violence against the rebels find justification in the exigencies of armed hostilities which is
of the essence of waging a rebellion or insurrection, most assuredly so in case of
invasion, merely seizing their persons and detaining them while any of these
contingencies continues cannot be less justified. . . .
3

The record, moreover, shows that the criminal case filed against Rolando Dural and Bernardo Itucal, Jr.
for "Double Murder, etc." was tried in the court below and at the conclusion thereof, or on 17 August
1988, Rolando Dural and Bernardo Itucal, Jr. were found guilty of the charge and sentenced accordingly.
Rolando Dural is now serving the sentence imposed upon him by the trial court. Thus, the writ of habeas
corpus is no longer available to him. For, as held in the early case of U.S. vs. Wilson:
4

216

In this case, whatever may be said about the manner of his arrest, the fact remains that
the defendant was actually in court in the custody of the law on March 29, when a
complaint sufficient in form and substance was read to him. To this he pleaded not guilty.
The trial followed, in which, and in the judgment of guilty pronounced by the court, we
find no error. Whether, if there were irregularities in bringing him personally before the
court, he could have been released on a writ of habeas corpus or now has a civil action
for damages against the person who arrested him we need not inquire. It is enough to
say that such irregularities are not sufficient to set aside a valid judgment rendered upon
a sufficient complaint and after a trial free from error.
II
In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and Wilfredo Buenaobra,
without warrant, is also justified. When apprehended at the house of Renato Constantino in Marikina
Heights, Marikina, Metro Manila, Wilfredo Buenaobra admitted that he was an NPA courier and he had
with him letters to Renato Constantino and other members of the rebel group. Amelia Roque, upon the
other hand, was a member of the National United Front Commission, in charge of finance, and admitted
ownership of subversive documents found in the house of her sister in Caloocan City. She was also in
possession of ammunition and a fragmentation grenade for which she had no permit or authority to
possess.
The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos y Ibanes, a member
of the NPA, who had surrendered to the military authorities, told military agents about the operations of
the Communist Party of the Philippines (CPP) and the New Peoples Army (NPA) in Metro Manila. He
identified some of his former comrades as "Ka Mong", a staff member of the Communications and
Transportation Bureau; "Ka Nelia", a staff member in charge of finance; "Ka Miller", an NPA courier from
Sorsogon and Lopez, Quezon; "Ka Ted", and "Ka Totoy". He also pointed to a certain house occupied
by Renato Constantino located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro
Manila, which is used as a safehouse of the National United Front Commission (NUFC) of the CPP-
NPA.
In view of these revelations, the Constantino house was placed under military surveillance and on 12
August 1988, pursuant to a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court
of Pasig, a search of the house was conducted at about 5:00 o'clock in the afternoon, by a combined
team of the Criminal Investigation Service, National Capital District (CIS-NCD) and the Constabulary
Security Group (CSG). In the course of the search, the following articles were found and taken under
proper receipt:
a) One (1) Colt M16A1 long rifle with defaced serial number;
b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778;
c) Two (2) fragmentation hand grenades;
d) Fifty-six (56) live ammunition for Cal. 5.56 mm;
e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transciever SN: 14903
g) One (1) Regulated power supply 220V AC;
h) One (1) Antennae (adjustable);
217

i) One (1) Speaker with cord ALEXAR;
j) Voluminous Subversive documents.
When confronted, Renato Constatino could not produce any permit or authority to possess the firearms,
ammunition, radio and other communications equipment. Hence, he was brought to the CIS
Headquarters for investigation. When questioned, he refused to give a written statement, although he
admitted that he was a staff member of the executive committee of the NUFC and a ranking member of
the International Department of the Communist Party of the Philippines (CPP).
At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo Buenaobra arrived at
the house of Renato Constantino in the Villaluz Compound. When accosted, he readily admitted to the
military agents that he is a regular member of the CPP/NPA and that he went to the place to deliver
letters to "Ka Mong", referring to Renato Constatino, and other members of the rebel group. On further
questioning, he also admitted that he is known as "Ka Miller" and that he was from Barangay San Pedro,
Lopez, Quezon. Among the items taken from him were the following:
(1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated August 11, 1988;
(2) Handwritten letter addressed to "ROD from VIC (Schell datre)" dated August 11,
1988;
(3) Handwritten letter addressed to "Suzie" from "Vic", dated August 11, 1988.
Also found Buenaobra's possession was a piece of paper containing a written but jumbled telephone
number of Florida M. Roque, sister of Amelia Roque alias "Ka Nelia", at 69 Geronimo St., Caloocan City.
Acting on the lead provided as to the whereabouts of Amelia Roque, the military agents went to the
given address the next day (13 August 1988). They arrived at the place at about 11:00 o'clock in the
morning. After identifying themselves as military agents and after seeking permission to search the
place, which was granted, the military agents conducted a search in the presence of the occupants of
the house and the barangay captain of the place, one Jesus D. Olba.
The military agents found the place to be another safehouse of the NUFC/CPP. They found ledgers,
journals, vouchers, bank deposit books, folders, computer diskettes, and subversive documents as well
as live ammunition for a .38 SPL Winchester, 11 rounds of live ammunition for a cal. .45, 19 rounds of
live ammunition for an M16 Rifle, and a fragmentation grenade. As a result, Amelia Roque and the other
occupants of the house were brought to the PC-CIS Headquarters at Camp Crame, Quezon City, for
investigation. Amelia Roque admitted to the investigators that the voluminous documents belonged to
her and that the other occupants of the house had no knowledge of them. As a result, the said other
occupants of the house were released from custody.
On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for inquest after which an
information charging her with violation of PD 1866 was filed with the Regional Trial Court of Caloocan
City. The case is docketed therein as Criminal Case No. C-1196. Another information for violation of the
Anti-Subversion Act was filed against Amelia Roque before the Metropolitan Trial Court of Caloocan
City, which is docketed therein as Criminal Case No. C-150458.
An information for violation of the Anti-Subversion Act was filed against Wilfredo Buenaobra before the
Metropolitan Trial Court of Marikina, Metro Manila. The case is docketed therein as Criminal Case No.
23715. Bail was set at P4,000.00.
On 24 August 1988, a petition for habeas corpus was filed before this Court on behalf of Amelia Roque
and Wilfredo Buenaobra. At the hearing of the case, however, Wilfredo Buenaobra manifested his desire
218

to stay in the PC-INP Stockade at Camp Crame, Quezon City. According, the petition for habeas corpus
filed on his behalf is now moot and academic. Only the petition of Amelia Roque remains for resolution.
The contention of respondents that petitioners Roque and Buenaobra are officers and/or members of the
National United Front Commission (NUFC) of the CPP was not controverted or traversed by said
petitioners. The contention must be deemed admitted.
5
As officers and/or members of the NUFC-CPP,
their arrest, without warrant, was justified for the same reasons earlier stated vis-a-vis Rolando Dural.
The arrest without warrant of Roque was additionally justified as she was, at the time of apprehension, in
possession of ammunitions without license to possess them.
III
In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo Anonuevo and Ramon Casiple,
without warrant, is also justified under the rules. Both are admittedly members of the standing committee
of the NUFC and, when apprehended in the house of Renato Constatino, they had a bag containing
subversive materials, and both carried firearms and ammunition for which they had no license to
possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in the evening of 13 August 1988,
Domingo T. Anonuevo and Ramon Casiple arrived at the house of Renato Constatino at Marikina
Heights, Marikina, which was still under surveillance by military agents. The military agents noticed
bulging objects on their waist lines. When frisked, the agents found them to be loaded guns. Anonuevo
and Casiple were asked to show their permit or license to possess or carry firearms and ammunition, but
they could not produce any. Hence, they were brought to PC Headquarters for investigation. Found in
their possession were the following articles:
a) Voluminous subversive documents
b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1) magazine for Cal. 7.65
containing ten (10) live ammunition of same caliber;
c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered with one (1)
magazine containing five (5) live ammunition of same caliber.
At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and Ramon Casiple as "Ka Totoy"
of the CPP, by their comrades who had previously surrendered to the military.
On 15 August 1988, the record of the investigation and other documentary evidence were forwarded to
the Provincial Fiscal at Pasig, Metro Manila, who conducted an inquest, after which Domingo Anonuevo
and Ramon Casiple were charged with violation of Presidential Decree No. 1866 before the Regional
Trial Court of Pasig, Metro Manila. The cases are docketed therein as Criminal Cases Nos. 74386 ad
74387, respectively. No bail was recommended.
On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf of Domingo
Anonuevo and Ramon Casiple, alleging that the said Anonuevo and Casiple were unlawfully arrested
without a warrant and that the informations filed against them are null and void for having been filed
without prior hearing and preliminary investigation. On 30 August 1988, the Court issued the writ of
habeas corpus, and after the respondents had filed a Return of the Writ, the parties were heard.
The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested because there was no
previous warrant of arrest, is without merit The record shows that Domingo Anonuevo and Ramon
Casiple were carrying unlicensed firearms and ammunition in their person when they were
apprehended.
219

There is also no merit in the contention that the informations filed against them are null and void for want
of a preliminary investigation. The filing of an information, without a preliminary investigation having
been first conducted, is sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as amended,
reads:
Sec. 7. When accused lawfully arrested without a warrant. When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial Court the
complaint or information may be filed by the offended party, peace officer or fiscal
without a preliminary investigation having been first conducted, on the basis of the
affidavit of the offended party or arresting officer or person.
However, before the filing of such complaint or information, the person arrested may ask
for a preliminary investigation by a proper officer in accordance with this Rule, but he
must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a
responsible person of his choice. Notwithstanding such waiver, he may apply for bail as
provided in the corresponding rule and the investigation must be terminated within fifteen
(15) days from its inception.
If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing of
the information, ask for a preliminary investigation with the same right to adduced
evidence in his favor in the manner prescribed in this Rule.
The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign a waiver of the
provisions of Article 125 of the Revised Penal Code, as amended. In the informations filed against them,
the prosecutor made identical certifications, as follows:
This is to certify that the accused has been charged in accordance with Sec. 7, Rule 112
of the 1985 Rules on Criminal Procedure, that no preliminary investigation was
conducted because the accused has not made and signed a waiver of the provisions of
Art. 125 of the Revised Penal Code, as amended; that based on the evidence presented,
there is reasonable ground to believe that the crime has been committed, and that the
accused is probably guilty thereof.
Nor did petitioners ask for a preliminary investigation after the informations had been filed against them
in court. Petitioners cannot now claim that they have been deprived of their constitutional right to due
process.
IV
In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya is justified under the
Rules, since she had with her unlicensed ammunition when she was arrested. The record of this case
shows that on 12 May 1988, agents of the PC Intelligence and Investigation of the Rizal PC-INP
Command, armed with a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of
Pasig, Metro Manila, conducted a search of a house located at Block 19, Phase II, Marikina Green
Heights, Marikina, Metro Manila, believed to be occupied by Benito Tiamson, head of the CPP-NPA. In
the course of the search, Vicky Ocaya arrived in a car driven by Danny Rivera. Subversive documents
and several rounds of ammunition for a .45 cal. pistol were found in the car of Vicky Ocaya. As a result,
Vicky Ocaya and Danny Rivera were brought to the PC Headquarters for investigation. When Vicky
Ocaya could not produce any permit or authorization to possess the ammunition, an information
charging her with violation of PD 1866 was filed with the Regional Trial Court of Pasig, Metro Manila.
The case is docketed therein as Criminal Case No. 73447. Danny Rivera, on the other hand, was
released from custody.
220

On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf of Vicky Ocaya and
Danny Rivera. It was alleged therein that Vicky Ocaya was illegally arrested and detained, and denied
the right to a preliminary investigation.
It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so that her arrest without a
warrant is justified. No preliminary investigation was conducted because she was arrested without a
warrant and she refused to waive the provisions of Article 125 of the Revised Penal Code, pursuant to
Sec. 7, Rule 112 of the Rule of Court, as amended.
V
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia Roque claim that the
firearms, ammunition and subversive documents alleged to have been found in their possession when
they were arrested, did not belong to them, but were "planted" by the military agents to justify their illegal
arrest.
The petitioners, however, have not introduced any evidence to support their aforesaid claim. On the
other hand, no evil motive or ill-will on the part of the arresting officers that would cause the said
arresting officers in these cases to accuse the petitioners falsely, has been shown. Besides, the
arresting officers in these cases do not appear to be seekers of glory and bounty hunters for, as counsel
for the petitioners Anonuevo and Casiple say, "there is absolutely nothing in the evidence submitted
during the inquest that petitioners are on the 'AFP Order of Battle with a reward of P150,000.00 each on
their heads.'"
6
On the other hand, as pointed out by the Solicitor General, the arrest of the petitioners is
not a product of a witch hunt or a fishing expedition, but the result of an in-depth surveillance of NPA
safehouses pointed to by no less than former comrades of the petitioners in the rebel movement.
The Solicitor General, in his Consolidated Memorandum, aptly observes:
. . . . To reiterate, the focal point in the case of petitioners Roque, Buenaobra, Anonuevo
and Casiple, was the lawful search and seizure conducted by the military at the
residence of Renato Constantino at Villaluz Compound, Molave St., Marikina Heights,
Marikina, Metro Manila. The raid at Constantino's residence, was not a witch hunting or
fishing expedition on the part of the military. It was a result of an in-depth military
surveillance coupled with the leads provided by former members of the underground
subversive organizations. That raid produced positive results. to date, nobody has
disputed the fact that the residence of Constantino when raided yielded communication
equipment, firearms and ammunitions, as well as subversive documents.
The military agents working on the information provided by Constantino that other
members of his group were coming to his place, reasonably conducted a "stake-out"
operation whereby some members of the raiding team were left behind the place. True
enough, barely two hours after the raid and Constantino's arrest, petitioner Buenaobra
arrived at Constantino's residence. He acted suspiciously and when frisked and
searched by the military authorities, found in his person were letters. They are no
ordinary letters, as even a cursory reading would show. Not only that, Buenaobra
admitted that he is a NPA courier and was there to deliver the letters to Constantino.
Subsequently, less than twenty four hours after the arrest of Constantino and
Buenaobra, petitioners Anonuevo and Casiple arrived at Constantino's place. Would it be
unreasonable for the military agents to believe that petitioners Anonuevo and Casiple are
among those expected to visit Constantino's residence considering that Constatino's
information was true, in that Buenaobra did come to that place? Was it unreasonable
under the circumstances, on the part of the military agents, not to frisk and search
anyone who should visit the residence of Constantino, such as petitioners Anonuevo and
221

Casiple? Must this Honorable Court yield to Anonuevo and Casiple's flimsy and bare
assertion that they went to visit Constantino, who was to leave for Saudi Arabia on the
day they were arrested thereat?
As to petitioner Roque, was it unreasonable for the military authorities to effect her arrest
without warrant considering that it was Buenaobra who provided the leads on her
identity? It cannot be denied that Buenaobra had connection with Roque. Because the
former has the phone number of the latter. Why the necessity of jumbling Roque's
telephone number as written on a piece of paper taken from Buenaobra's possession?
Petitioners Roque and Buenaobra have not offered any plausible reason so far.
In all the above incidents, respondents maintain that they acted reasonably, under the
time, place and circumstances of the events in question, especially considering that at
the time of petitioner's arrest, incriminatory evidence, i.e, firearms, ammunitions and/or
subversive documents were found in their possession.
Petitioners, when arrested, were neither taking their snacks nor innocently visiting a
camp, but were arrested in such time, place and circumstances, from which one can
reasonably conclude tat they were up to a sinister plot, involving utmost secrecy and
comprehensive conspiracy.
IV
In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the petitioner Deogracias Espiritu,
who is detained by virtue of an Information for Violation of Article 142 of the Revised Penal Code
(Inciting to Sedition) filed with the Regional Trial Court of Manila, is similarly not warranted.
The record of the case shows that the said petitioner is the General Secretary of the Pinagkaisahang
Samahan ng Tsuper at Operators Nationwide (PISTON), an association of drivers and operators of
public service vehicles in the Philippines, organized for their mutual aid and protection.
Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988, while he was sleeping
in his home located at 363 Valencia St., Sta. Mesa, Manila, he was awakened by his sister Maria Paz
Lalic who told him that a group of persons wanted to hire his jeepney. When he went down to talk to
them, he was immediately put under arrest. When he asked for the warrant of arrest, the men, headed
by Col. Ricardo Reyes, bodily lifted him and placed him in their owner-type jeepney. He demanded that
his sister, Maria Paz Lalic, be allowed to accompany him, but the men did not accede to his request and
hurriedly sped away.
He was brought to Police Station No. 8 of the Western Police District at Blumentritt, Manila where he
was interrogated and detained. Then, at about 9:00 o'clock of the same morning, he was brought before
the respondent Lim and, there and then, the said respondent ordered his arrest and detention. He was
thereafter brought to the General Assignment Section, Investigation Division of the Western Police
District under Police Capt. Cresenciano A. Cabasal where he was detained, restrained and deprived of
his liberty.
7

The respondents claim however, that the detention of the petitioner is justified in view of the Information
filed against him before the Regional Trial Court of Manila, docketed therein as Criminal Case No. 88-
683-85, charging him with violation of Art. 142 of the Revised Penal Code (Inciting to Sedition).
The respondents also claim that the petitioner was lawfully arrested without a judicial warrant of arrest
since petitioner when arrested had in fact just committed an offense in that in the afternoon of 22
November 1988, during a press conference at the National Press Club.
222

Deogracias Espiritu through tri-media was heard urging all drivers and operators to go on
nationwide strike on November 23, 1988, to force the government to give into their
demands to lower the prices of spare parts, commodities, water and the immediate
release from detention of the president of the PISTON (Pinag-isang Samahan ng Tsuper
Operators Nationwide). Further, we heard Deogracias Espiritu taking the place of
PISTON president Medardo Roda and also announced the formation of the Alliance
Drivers Association to go on nationwide strike on November 23, 1988.
8

Policemen waited for petitioner outside the National Pres Club in order to investigate him, but he gave
the lawmen the slip.
9
He was next seen at about 5:00 o'clock that afternoon at a gathering of drivers and
symphatizers at the corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila where he was
heard to say:
Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali sila, at hindi tayo
titigil hanggang hindi binibigay ng gobyerno ni Cory ang gusto nating pagbaba ng halaga
ng spare parts, bilihin at and pagpapalaya sa ating pinuno na si Ka Roda hanggang sa
magkagulo na.
10
(emphasis supplied)
The police finally caught up with the petitioner on 23 November 1988. He was invited for questioning and
brought to police headquarters after which an Information for violation of Art. 142 of the Revised Penal
Code was filed against him before the Regional Trial Court of Manila.
11

Since the arrest of the petitioner without a warrant was in accordance with the provisions of Rule 113,
Sec. 5(b) of the Rules of Court and that the petitioner is detained by virtue of a valid information filed
with the competent court, he may not be released on habeas corpus. He may, however be released
upon posting bail as recommended. However, we find the amount of the recommended bail
(P60,000.00) excessive and we reduce it to P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the submission of
Narciso Nazareno that he was illegally arrested and is unlawfully detained. The record of this case
shows that at about 8:30 o'clock in the morning of 14 December 1988, one Romulo Bunye II was killed
by a group of men near the corner of T. Molina and Mendiola Streets in Alabang, Muntinglupa, Metro
Manila. One of the suspects in the killing was Ramil Regal who was arrested by the police on 28
December 1988. Upon questioning, Regal pointed to Narciso Nazareno as on of his companions in the
killing of the said Romulo Bunye II. In view thereof, the police officers, without warrant, picked up
Narciso Nazareno and brought him to the police headquarters for questioning. Obviously, the evidence
of petitioner's guilt is strong because on 3 January 1989, an information charging Narciso Nazareno,
Ramil Regala, and two (2) others, with the killing of Romulo Bunye II was filed with the Regional Trial
Court of Makati, Metro Manila. The case is docketed therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was denied by the trial
court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused,
Manuel Laureaga, was granted by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso
Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, returnable to the
Presiding Judge of the Regional Trial Court of Bian, Laguna, Branch 24, ordering said court to hear the
case on 30 January 1989 and thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court
of Bian, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said
Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with
223

the Regional Trial Court of Makati, Metro Manila which had taken cognizance of said case and had, in
fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of
the evidence against him).
The findings of the Presiding Judge of the Regional Trial Court of Bian, Laguna are based upon the
facts and the law. Consequently, we will not disturb the same. Evidently, the arrest of Nazareno was
effected by the police without warrant pursuant to Sec. 5(b), Rule 113, Rules of Court after he was
positively implicated by his co-accused Ramil Regala in the killing of Romulo Bunye
II; and after investigation by the police authorities. As held in People vs. Ancheta:
12

The obligation of an agent of authority to make an arrest by reason of a crime, does not
presuppose as a necessary requisite for the fulfillment thereof, the indubitable existence
of a crime. For the detention to be perfectly legal, it is sufficient that the agent or person
in authority making the arrest has reasonably sufficient grounds to believe the existence
of an act having the characteristics of a crime and that the same grounds exist to believe
that the person sought to be detained participated therein.
VIII
It is to be noted that, in all the petitions here considered, criminal charges have been filed in the proper
courts against the petitioners. The rule is, that if a person alleged to be restrained of his liberty is in the
custody of an officer under process issued by a court judge, and that the court or judge had jurisdiction
to issue the process or make the order, of if such person is charged before any court, the writ of habeas
corpus will not be allowed. Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing
that:
Sec. 4. When writ is allowed or discharge authorized. If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process issued
by a court or judge or by virtue of a judgment or order of a court of record, and that the
court or judge had jurisdiction to issue the process, render the judgment, or make the
order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed,
the person shall not be discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a
person charged with a convicted of an offense in the Philippines or of a person suffering
imprisonment under lawful judgment. (emphasis supplied)
At this point, we refer to petitioner's plea for the Court of re-examine and, thereafter, abandon its
pronouncement in Ilagan vs. Enrile,
13
that a writ of habeas corpus is no longer available after an
information is filed against the person detained and a warrant of arrest or an order of commitment, is
issued by the court where said information has been filed.
14
The petitioners claim that the said ruling,
which was handed down during the past dictatorial regime to enforce and strengthen said regime, has
no place under the present democratic dispensation and collides with the basic, fundamental, and
constitutional rights of the people. Petitioners point out that the said doctrine makes possible the arrest
and detention of innocent persons despite lack of evidence against them, and, most often, it is only after
a petition for habeas corpus is filed before the court that the military authorities file the criminal
information in the courts of law to be able to hide behind the protective mantle of the said doctrine. This,
petitioners assert, stands as an obstacle to the freedom and liberty of the people and permits lawless
and arbitrary State action.
We find, however, no compelling reason to abandon the said doctrine. It is based upon express
provision of the Rules of Court and the exigencies served by the law. The fears expressed by the
petitioners are not really unremediable. As the Court sees it, re-examination or reappraisal, with a view
to its abandonment, of the Ilagan case doctrine is not the answer. The answer and the better practice
would be, not to limit the function of the habeas corpus to a mere inquiry as to whether or not the court
which issued the process, judgment or order of commitment or before whom the detained person is
224

charged, had jurisdiction or not to issue the process, judgment or order or to take cognizance of the
case, but rather, as the Court itself states in Morales, Jr. vs. Enrile,
15
"in all petitions for habeas corpus
the court must inquire into every phase and aspect of petitioner's detention-from the moment petition
was taken into custody up to the moment the court passes upon the merits of the petition;" and "only
after such a scrutiny can the court satisfy itself that the due process clause of our Constitution has in fact
been satisfied." This is exactly what the Court has done in the petitions at bar. This is what should
henceforth be done in all future cases of habeas corpus. In Short, all cases involving deprivation of
individual liberty should be promptly brought to the courts for their immediate scrutiny and disposition.
WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim),
the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to
P10,000.00. No costs. SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 93239 March 18, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDISON SUCRO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Fidencio S. Raz for accused-appellant.
GUTIERREZ, JR., J .:p
Edison Sucro was charged with and convicted of violation of Section 4, Article II of the Dangerous Drugs
Act, under an Information which reads:
That on or about the 21st day of March, 1989, in the evening, in the Poblacion,
Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, acting as a pusher or
broker in the business of selling, administering, delivery, giving away to another and/or
distributing prohibited drugs, did then and there wilfully, unlawfully and feloniously and
without authority of law have in his possession and control nineteen (19) pieces of
marijuana cigarette sticks and four (4) tea bags of dried marijuana leaves which were
confiscated from him by the police authorities of Kalibo, Aklan, shortly after having sold
one tea bag of dried marijuana leaves to a customer. (Rollo, p. 9)
Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of "not guilty" to the
offense charged. Trial ensued and a judgment of conviction was rendered, the pertinent portion of which
reads:
WHEREFORE, judgment is rendered finding the accused Edison Sucro guilty of the sale
of prohibited drug under Section 4, Article II of the Dangerous Drug Act, as amended,
and sentencing him to suffer the penalty of life imprisonment, and pay a fine of P20,000,
and costs. He shall be entitled to full credit in the service of his sentence with the period
for which he has undergone preventive imprisonment to the date of promulgation of this
judgment. All the items of marijuana confiscated in this case are declared forfeited in
favor of the State. (Rollo, p. 41)
225

From the foregoing judgment of conviction, accused-appellant interposes this appeal, assigning the
following as errors allegedly committed by the court a quo, to wit:
I
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE
PROSECUTION EXHIBITS "E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA, TO BE
THE CORPUS DELICTI; FURTHERMORE, THAT THE SAME WERE TAKEN WITHOUT
THE REQUIRED WARRANT OF SEARCH AND ARREST SINCE THE ACCUSED WAS
NOT IN THE ACT OF COMMITTING ANY OFFENSE AT THE TIME OF HIS ARREST.
II
THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO GUILTY
OF THE SALE OF PROHIBITED DRUGS UNDER SECTION 4, ARTICLE II, OF THE
DANGEROUS DRUGS ACT AND SENTENCING HIM TO SUFFER A PENALTY OF
LIFE IMPRISONMENT AND TO PAY A FINE OF P 20,000.00. (Appellant's Brief, p. 1)
The antecedent facts of the case as summarized by the Solicitor General are as follows:
On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo, Aklan, was
instructed by P/Lt. Vicente Seraspi, Jr. (Station Commander of the INP Kalibo, Aklan) to
monitor the activities of appellant Edison Sucro, because of information gathered by
Seraspi that Sucro was selling marijuana. (p. 6, TSN, May 2,1989).
As planned, at about 5:00 P.M. on said date, Pat. Fulgencio Positioned himself under the
house of a certain Arlie Regalado at C. Quimpo Street. Adjacent to the house of
Regalado, about 2 meters away, was a chapel. Thereafter, Pat. Fulgencio saw appellant
enter the chapel, taking something which turned out later to be marijuana from the
compartment of a cart found inside the chapel, and then return to the street where he
handed the same to a buyer, Aldie Borromeo. After a while appellant went back to the
chapel and again came out with marijuana which he gave to a group of persons. (pp. 6-8,
15-18, Ibid). It was at this instance that Pat. Fulgencio radioed P/Lt. Seraspi and reported
the activity going on. P/Lt. Seraspi instructed Pat. Fulgencio to continue monitoring
developments. At about 6:30 P.M., Pat. Fulgencio again called up Seraspi to report that
a third buyer later Identified as Ronnie Macabante, was transacting with appellant. (pp.
18-19, Ibid)
At that point, the team of P/Lt. Seraspi proceeded to the area and while the police
officers were at the Youth Hostel at Maagma St., Pat. Fulgencio told P/Lt. Seraspi to
intercept Macabante and appellant. P/Lt. Seraspi and his team caught up with
Macabante at the crossing of Mabini and Maagma Sts. in front of the Aklan Medical
Center. Upon seeing the police, Macabante threw something to the ground which turned
out to be a tea bag of marijuana. (pp. 6-8, TSN, June 19, 1989) When confronted,
Macabante readily admitted that he bought the same from appellant (Edison Sucro) in
front of the chapel. (p. 6, TSN, May 24, 1989) The police team was able to overtake and
arrest appellant at the corner of C. Quimpo and Veterans Sts. The police recovered 19
sticks and 4 teabags of marijuana from the cart inside the chapel and another teabag
from Macabante, The teabags of marijuana were sent to the PC-INP Crime Laboratory
Service, at Camp Delgado, Iloilo City for analysis. The specimens (Exhibits "G" to "G-
18", Exhibits "E" to "E-4") were all found positive of marijuana. (pp. 47, TSN, Sept. 4,
1989)" (Appellee's Brief, pp. 3-6)
226

As can be seen from the facts, the issue hinges mainly on whether or not the arrest without warrant of
the accused is lawful and consequently, whether or not the evidence resulting from such arrest is
admissible.
We rule in the affirmative.
The accused-appellant contends that his arrest was illegal, being a violation of his rights granted under
Section 2, Article III of the 1987 Constitution. He stresses that there was sufficient time for the police
officers to apply for a search and arrest warrants considering that Fulgencio informed his Station
Commander of the activities of the accused two days before March 21, 1989, the date of his arrest.
This contention is without merit.
Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where arrest without
warrant is considered lawful. The rule states:
Arrest without warrant, when lawful. A peace officer or private person may, without
warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; (Emphasis supplied)
An offense is committed in the presence or within the view of an officer, within the meaning of the rule
authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or
hears the disturbances created thereby and proceeds at once to the scene thereof. (U.S. v. Fortaleza,
12 Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil. 516 [1910])
The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to monitor the
activities of the accused who was earlier reported to be selling marijuana at a chapel two (2) meters
away from Regalado's house.
Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity. He saw Sucro talk
to some persons, go inside the chapel, and return to them and exchange some things. These, Sucro did
three times during the time that he was being monitored. Fulgencio would then relay the on-going
transaction to P/Lt. Seraspi.
Anent the second requirement, the fact that Macabante, when intercepted by the police, was caught
throwing the marijuana stick and when confronted, readily admitted that he bought the same from
accused-appellant clearly indicates that Sucro had just sold the marijuana stick to Macabante, and
therefore, had just committed an illegal act of which the police officers had personal knowledge, being
members of the team which monitored Sucro's nefarious activity.
The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27, 1990) that police
officers have personal knowledge of the actual commission of the crime when it had earlier conducted
surveillance activities of the accused. Thus, it stated:
When Luciano and Caraan reached the place where the alleged transaction would take
place and while positioned at a street comer, they saw appellant Regalado Bati and
Warner Marquez by the side of the street about forty to fifty meters away from them (the
public officers). They saw Marquez giving something to Bati, who, thereafter handed a
wrapped object to Marquez who then inserted the object inside the front of his pants in
227

front of his abdomen while Bati, on his part, placed the thing given to him inside his
pocket. (p. 2)
xxx xxx xxx
. . . Both Patrolman Luciano and Caraan actually witnessed the same and their
testimonies were based on their actual and personal knowledge of the events that took
place leading to appellant's arrest. They may not have been within hearing distance,
specially since conversation would expectedly be carried on in hushed tones, but they
were certainly near enough to observe the movements of the appellant and the buyer.
Moreover, these prosecution witnesses are all law enforcers and are, therefore,
presumed to have regularly performed their duties in the absence of proof to the contrary
(People v. Bati, supra citing People v. Agapito, G.R. No. 73786, October 12, 1987)
The accused questions the failure of the police officers to secure a warrant considering that Fulgencio
himself knew of Sucro's activities even prior to the former's joining the police force. Fulgencio reported
Sucro's activities only three days before the incident.
As the records reveal, Fulgencio and Sucro had known each other since their childhood years and that
after Fulgencio joined the police force, he told the accused-appellant not to sell drugs in their locality.
Hence, it is possible that because of this friendship, Fulgencio hesitated to report his childhood friend
and merely advised him not to engage in such activity. However, because of reliable information given
by some informants that selling was going on everyday, he was constrained to report the matter to the
Station Commander.
On the other hand, the failure of the police officers to secure a warrant stems from the fact that their
knowledge acquired from the surveillance was insufficient to fulfill the requirements for the issuance of a
search warrant. What is paramount is that probable cause existed. Thus, it has been held in the case of
People v. Lo Ho Wing, et al. (G.R. No. 88017, January 21, 1991):
In the instant case, it was firmly established from the factual findings of the trial court that
the authorities had reasonable ground to believe that appellant would attempt to bring in
contraband and transport it within the country. The belief was based on intelligence
reports gathered from surveillance activities on the suspected syndicate, of which
appellant was touted to be a member. Aside from this, they were also certain as to the
expected date and time of arrival of the accused from China. But such knowledge was
clearly insufficient to enable them to fulfill the requirements for the issuance of a search
warrant. Still and all, the important thing is that there was probable cause to conduct the
warrantless search, which must still be present in such a case.
As the Solicitor General has pointed out:
There are several instances when a warrantless search and seizure can be effected
without necessarily being preceded by an arrest provided the same is effected on the
basis of probable cause (e.g. stop and search without warrant at checkpoints). Between
warrantless searches and seizures at checkpoints and in the case at bar the latter is
more reasonable considering that unlike in the former, it was effected on the basis of
probable cause. Under the circumstances (monitoring of transactions) there existed
probable cause for the arresting officers, to arrest appellant who was in fact selling
marijuana and to seize the contraband.
That searches and seizures must be supported by a valid warrant is not an absolute rule (Manipon, Jr. v.
Sandiganbayan, 143 SCRA 267 [1986]). Among the exceptions granted by law is a search incidental to
a lawful arrest under Sec. 12, Rule 126 of the Rules on Criminal Procedure, which provides that a
228

person lawfully arrested may be searched for dangerous weapons or anything which may be used as
proof of the commission of an offense, without a search warrant. (People v. Castiller, G.R. No. 87783,
August 6, 1990)
The accused-appellant claims that the arrest having been done without warrant, it follows that the
evidence obtained therefrom is inadmissible.
As earlier discussed, there is nothing unlawful about the arrest considering its compliance with the
requirements of a warrantless arrest. Ergo, the fruits obtained from such lawful arrest are admissible in
evidence.
Edison Sucro assails the trial court's reliance on the statement of Macabante whose reason for testifying
could be merely to escape prosecution.
We quote the trial court's finding as to the testimony of Macabante:
The non-filing of a complaint against him for possession of marijuana may have been the
reason of (sic) his willingness to testify in court against the accused. But this does not
necessarily taint the evidence that proceeds from his lips. As explained by Lt. Seraspi,
the best sources of information against drug pushers are usually their customers,
especially if as in this case, there is no other direct evidence of the selling except the
testimony of the buyer. We accept this observation as a realistic appraisal of a situation
in which drug users are, and should be employed by law enforcement authorities to
bolster the drive against pushers who are the real felons in our society. We have
observed the demeanor of the witness in court, and found him to be straightforward,
unhesitating, and spontaneous in his declarations, so that we are satisfied as to his
intention and disposition to tell the truth (Rollo, p. 40)
Time and again it has been held that the findings of the trial court are entitled to great weight and should
not be disturbed on appeal unless it is shown that the trial court had overlooked certain facts of weight
and importance, it being acknowledged. that the court below, having seen and heard the witnesses
during the trial, is in a better position to evaluate their testimonies (People v. Umali, et al., G.R. No.
84450, February 4, 1991 citing People v. Alvarez, 163 SCRA 745 [1988]; People v. Dorado, 30 SCRA
53 [1969]; and People v. Espejo, 36 SCRA 400 [1970]).
Furthermore, the testimony of Macabante was corroborated on material points by public officers
Fulgencio and Seraspi.
There is nothing in the record to suggest that the police officers were compelled by any motive than to
accomplish their mission to capture a drug pusher in the execution of the crime, the presumption being
that police officers perform their duties regularly in the absence of any evidence to the contrary (Rule
131, Sec. 3(m), Revised Rules on Evidence; People v. Castiller, supra citing People v. Natipravat, 145
SCRA 483 [1986]).
The prosecution evidence was further bolstered by the findings of the Forensic Chemist that the items
seized were all positive for marijuana.
In contrast to the evidence presented by the prosecution, accused-appellant's defense is alibi which is
unavailing considering that he was positively identified by Macabante to be the person from whom he
bought marijuana.
Sucro alleges that he could not have committed the crime since he was with his uncle and cousin
distributing handbills for his Auntie's candidacy. The fact, however, remains that it does not preclude the
229

possibility that he was present in the vicinity as established by his admission that he moved a lot and
even had the occasion to meet Macabante on the street.
It is well-settled that mere denials cannot prevail against the positive identification of the appellant as the
seller of the prohibited substances. (People v. Khan, 161 SCRA 406 [1988]; and People v. Paco, 170
SCRA 681 [1989])
Premises considered, this Court is convinced that appellant Edison Sucro had indeed committed the
offense charged. The trial court's decision must be upheld.
WHEREFORE, the decision appealed from is hereby AFFIRMED.
SO ORDERED. Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 95902 February 4, 1992
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DON RODRIGUEZA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
REGALADO, J .:
On appeal before us is the decision of the Regional Trial Court of Legaspi City, Branch 10, finding
accused-appellant Don Rodrigueza guilty beyond reasonable doubt of violating Section 4, Article II of the
Dangerous Drugs Act of 1972 (Republic Act No. 6425, as amended) and sentencing him to suffer the
penalty of life imprisonment and to pay a fine of P20,000.00 and costs.
1

However, the Solicitor General, deviating from his conventional stance in the prosecution of criminal
cases, recommends the acquittal of appellant for the reasons stated in his Manifestation for Acquittal (In
Lieu of Appellee's Brief) filed with the Court. We have reviewed and analyzed the testimonial and
documentary evidence in this case and we find said recommendation to be well taken.
The information, dated July 10, 1987, charges Don Rodrigueza and his co-accused, Samuel Segovia
and Antonio Lonceras, with allegedly having in their custody and possession 100 grams of marijuana
leaves and for selling, in a buy-bust operation, said 100 grams of dried marijuana leaves for a
consideration of P200.00.
2

During the arraignment, all the accused pleaded not guilty to the charge against them. At the trial, the
prosecution and the defense presented several witnesses after which the court a quo rendered judgment
acquitting Samuel Segovia and Antonio Lonceras but convicting and penalizing herein appellant as
hereinbefore stated.
230

The following facts are culled from the decision of the trial court and the evidence presented by the
prosecution.
At around 5:00 o'clock in the afternoon of July 1, 1987, CIC Ciriaco Taduran was in their headquarters at
the Office of the Narcotics Regional Unit at Camp Bagong Ibalon, Legaspi City, together with S/Sgt.
Elpidio Molinawe, CIC Leonardo B. Galutan and their commanding officer, Major Crisostomo M. Zeidem,
when a confidential informer arrived and told them that there was an ongoing illegal traffic of prohibited
drugs in Tagas, Daraga, Albay. Major Zeidem formed a team to conduct a buy-bust operation, which
team was given P200.00 in different denominations to buy marijuana. These bills were treated with
ultraviolet powder at the Philippine Constabulary Crime Laboratory (PCCL). Sgt. Molinawe gave the
money to Taduran who acted as the poseur buyer. He was told to look for a certain Don, the alleged
seller of prohibited drugs. Taduran went to Tagas alone and, while along the road, he met Samuel
Segovia. He asked Segovia where be could find Don and where he could buy marijuana. Segovia left for
a while and when be returned, he was accompanied by a man who was later on introduced to him as
Don, herein appellant.
3

After agreeing on the price of P200.00 for 100 grams of marijuana, Don halted a passing tricycle driven
by Antonio Lonceras. He boarded it and left Taduran and Segovia. When he came back, Don gave
Taduran "a certain object wrapped in a plastic" which was later identified as marijuana, and received
payment therefor. Thereafter, Taduran returned to the headquarters and made a report regarding his
said purchase of marijuana.
4

Based on that information, Major Zeidem ordered a team to conduct an operation to apprehend the
suspects. In the evening of the same date, CIC Galutan and S/Sgt. Molinawe proceeded to Regidor
Street, Daraga, Albay and arrested appellant, Antonio Lonceras and Samuel Segovia. The constables
were not, however, armed with a warrant of arrest when they apprehended the three accused. The
arrestees were brought to the headquarters for investigation.
5

Thereafter, agents of the Narcotics Command (NARCOM) conducted a raid in the house of Jovencio
Rodrigueza, father of appellant. Taduran did not go with them. During the raid, they were able to
confiscate dried marijuana leaves and a plastic syringe, among others. The search, however, was not
authorized by any search warrant.
6

The next day, July 2, 1987, Jovencio Rodrigueza was released from detention but appellant was
detained. An affidavit, allegedly taken from and executed by him, was sworn to by him before the
assistant city prosecutor. Appellant had no counsel when his sworn statement was taken during that
custodial investigation. The arrestees were also examined by personnel of the PCCL and were found
positive for ultraviolet powder.
7

The three accused presented different versions of their alleged participations.
Samuel Segovia testified that he was in their house in the evening of July 1, 1987 listening to the radio.
Later, he ate his merienda and then went out to buy cigarettes from the store. While he was at the store,
a jeep stopped behind him. Several armed men alighted therefrom and ordered him to get inside the
jeep. He refused but he was forced to board the vehicle. He was even hit by the butt of a gun. 8
He was thereafter brought to Camp Bagong Ibalon where he was investigated and was repeatedly
asked regarding the whereabouts of Rodrigueza. He was manhandled by the NARCOM agents and was
detained while inside the camp. He was then made to hold a P10.00 bill treated with ultraviolet powder.
When he was taken to the PCCL and examined he was found positive of the ultraviolet powder. He was
also made to sign some papers but he did not know what they were all about.
9

Appellant, on the other hand, testified that on said date he was in the house of his aunt in San Roque,
Legaspi City. He stayed there overnight and did not leave the place until the next day when his brother
231

arrived and told him that their father was taken by some military men the preceding night. Appellant went
to Camp Bagong Ibalon and arrived there at around 8:00 o'clock in the morning of July 2, 1987. When
he arrived, he was asked if he knew anything about the marijuana incident, to which question he
answered in the negative. Like Segovia, he was made to hold a P10.00 bill and was brought to the crime
laboratory for examination. From that time on, he was not allowed to go home and was detained inside
the camp. He was also tortured in order to make him admit his complicity in the alleged sale of
marijuana.
10

In the assignment of errors in his brief, appellant contends that the trial court erred in (1) admitting in
evidence the sworn statement of appellant which was obtained in violation of his constitutional rights; (2)
convicting appellant of the crime charged despite the fact that the 100 grams of dried marijuana leaves
allegedly bought from him were not properly identified; (3) convicting appellant of the crime charged
despite the fact that the evidence for the prosecution is weak and not convincing; and (4) finding
appellant guilty beyond reasonable doubt of selling or at least acting as broker in the sale of the 100
grams of marijuana to CIC Taduran late in the afternoon of July 1, 1987, despite the failure of the
prosecution to prove his guilt beyond reasonable doubt.
11

We rule for the appellant and approve the recommendation for his acquittal. In disposing of this case,
however, we feel that the issues raised by appellant should properly be discussed seriatim.
1. A buy-bust operation is a form of entrapment employed by peace officers to trap and catch a
malefactor in flagrante delicto.
12
Applied to the case at bar, the term in flagrante delicto requires that the
suspected drug dealer must be caught redhanded in the act of selling marijuana or any prohibited drug
to a person acting or posing as a buyer.
In the instant case, however, the procedure adopted by the NARCOM agents failed to meet this
qualification. Based on the very evidence of the prosecution, after the alleged consummation of the sale
of dried marijuana leaves, CIC Taduran immediately released appellant Rodrigueza instead of arresting
and taking him into his custody. This act of CIC Taduran, assuming arguendo that the supposed sale of
marijuana did take place, is decidedly contrary to the natural course of things and inconsistent with the
aforestated purpose of a buy-bust operation. It is rather absurd on his part to let appellant escape
without having been subjected to the sanctions imposed by law. It is, in fact, a dereliction of duty by an
agent of the law.
2. The admissibility of the sworn statement allegedly executed by appellant was squarely placed in issue
and, as correctly pointed out by the defense, said sworn statement is inadmissible in evidence against
appellant.
We have once again to reiterate and emphasize that Article III of the 1987 Constitution provides:
Sec. 12 (1). Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have a competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or section 17 hereof shall be
inadmissible in evidence against him.
An examination of said sworn statement shows that appellant was informed of his constitutional right to
remain silent and to be assisted by counsel during custodial examination. He was also asked if he was
waiving his right to be assisted by counsel and he answered in the affirmative. However, while the rights
232

of a person under custodial investigation may be waived, such waiver must be made not only voluntarily,
knowingly and intelligently but also in the presence and with the assistance of counsel.
13
In the present
case, the waiver made by appellant being without the assistance of counsel, this omission alone is
sufficient to invalidate said sworn statement.
14

3. Corollary to this, we take cognizance of the error of the trial court in admitting in evidence against
appellant the articles allegedly confiscated during the raid conducted in the house of Jovencio
Rodrigueza.
As provided in the present Constitution, a search, to be valid, must generally be authorized by a search
warrant duly issued by the proper government authority.
15
True, in some instances, this Court has
allowed government authorities to conduct searches and seizures even without a search warrant. Thus,
when the owner of the premises waives his right against such incursion;
16
when the search is incidental
to a lawful arrest;
17
when it is made on vessels and aircraft for violation of customs laws;
18
when it is
made on automobiles for the purpose of preventing violations of smuggling or immigration laws;
19
when
it involves prohibited articles in plain view;
20
or in cases of inspection of buildings and other premises for
the enforcement of fire, sanitary and building regulations,
21
a search may be validly made even without
a search warrant.
In the case at bar, however, the raid conducted by the NARCOM agents in the house of Jovencio
Rodrigueza was not authorized by any search warrant. It does not appear, either, that the situation falls
under any of the aforementioned cases. Hence, appellant's right against unreasonable search and
seizure was clearly violated. The NARCOM agents could not have justified their act by invoking the
urgency and necessity of the situation because the testimonies of the prosecution witnesses reveal that
the place had already been put under surveillance for quite some time. Had it been their intention to
conduct the raid, then they should, because they easily could, have first secured a search warrant during
that time.
4. The Court further notes the confusion and ambiguity in the identification of the confiscated marijuana
leaves and other prohibited drug paraphernalia presented as evidence against appellant.
CIC Taduran, who acted as the poseur buyer, testified that appellant sold him 100 grams of dried
marijuana leaves wrapped in a plastic bag. Surprisingly, and no plausible explanation has been
advanced therefor, what were submitted to and examined by the PCCL and thereafter utilized as
evidence against the appellant were the following items:
One (1) red and white colored plastic bag containing the following:
Exh. "A"Thirty (30) grams of suspected dried marijuana fruiting tops contained inside a
transparent plastic bag.
Exh. "B" Fifty (50) grams of suspected dried marijuana leaves and seeds contained
inside a white colored plastic labelled "Robertson".
Exh. "C" Four (4) aluminum foils each containing suspected dried marijuana fruiting
tops having a total weight of seven grams then further wrapped with a piece of aluminum
foil.
Exh. "D" Five (5) small transparent plastic bags each containing suspected dried
marijuana fruiting tops having a total weight of seventeen grams.
Exh. "E" One plastic syringe.
22

233

Evidently, these prohibited articles were among those confiscated during the so-called follow-up raid in
the house of Jovencio Rodrigueza. The unanswered question then arises as to the identity of the
marijuana leaves that became the basis of appellant's conviction.
23
In People vs. Rubio,
24
this Court
had the occasion to rule that the plastic bag and the dried marijuana leaves contained therein constitute
the corpus delicti of the crime. As such, the existence thereof must be proved with certainty and
conclusiveness. Failure to do so would be fatal to the cause of the prosecution.
5. It is accepted that, as a rule, minor inconsistencies in the testimony of a witness will not affect his
credibility. It even enhances such credibility because it only shows that he has not been rehearsed.
25

However, when the inconsistencies pertain to material and crucial points, the same detract from his
overall credibility.
The exception, rather than the rule, applies in the case at bar. As correctly pointed out by the Solicitor
General, the testimonies of the prosecution witnesses are tainted with serious flaws and material
inconsistencies rendering the same incredible.
26

CIC Taduran, in his testimony, said that they had already been conducting surveillance of the place
where the buy-bust operation was to take place. It turned out, however, that he did not even know the
exact place and the identity of the person from whom he was to buy marijuana leaves. Thus:
FISCAL TOLOSA
Q What place in Tagas were you able to go (to)?
WITNESS
A I am not actually familiar in (sic) that place, in Tagas, although we
occasionally passed there.
Q Now, upon your arrival in Tagas, what did you do that afternoon?
A I waited for the suspect because previously, we have already been
conducted (sic) surveylance (sic) in the vicinity.
Q Upon arrival in Tagas, were you able to see the suspect?
A By the road, sir.
Q Who was the first person did you see (sic) when you arrived at Tagas?
A The first person whom I saw is Samuel Segovia.
Q Were you able to talk with this Samuel Segovia?
A According to him, we could get some.
27

The same findings go for the testimony of witness Galutan. In his direct examination, he declared that
they arrested the three accused all at the same time on the fateful night of July 1, 1987. But, in his cross-
examination and as corroborated by the Joint Affidavit of Arrest
28
submitted by him and Molinawe, it
appeared that Lonceras and Segovia were arrested on different times and that appellant Don
Rodrigueza was not among those who were arrested. Instead, it was Jovencio Rodrigueza, Don's father,
who was picked up at a much later time.
234

With said inconsistencies in sharp focus, we are constrained to give more credibility to the testimony of
appellant Rodrigueza. While it is true that appellant's defense amounts to an alibi, and as such is the
weakest defense in a criminal prosecution, there are, nonetheless, some evidentiary aspects pointing to
the truth in his testimony. Firstly, the Joint Affidavit of Arrest corroborates his testimony that he was not
among those who were arrested on the night of July 1, 1987. His co-accused Segovia also testified that
appellant Rodrigueza was not with them when they were apprehended by the NARCOM agents.
Secondly, the apparent motive of the NARCOM agents in prosecuting the accused was also revealed
during the trial of the case. Rebuttal witnesses Gracita Bahillo, sister of appellant, and Hospicio Segovia,
father of Samuel Segovia, testified that Sgt. Molinawe, who has since been reportedly dismissed from
the service, asked for P10,000.00 from each of them in exchange for the liberty of the accused.
29
This
allegation was never refuted by the prosecution. Hence, the rule laid down by this Court that the
statements of prosecution witnesses are entitled to full faith and credit
30
has no application in the case
at bar.
Finally, the Court has repeatedly ruled that to sustain the conviction of the accused, the prosecution
must rely on the strength of its own evidence and not on the weakness of the defense.
31
As clearly
shown by the evidence, the prosecution has failed to establish its cause. It has not overcome the
presumption of innocence accorded to appellant. This being the case, appellant should not be allowed to
suffer for unwarranted and imaginary imputations against him.
WHEREFORE, the judgment of conviction of the court below is hereby REVERSED and SET ASIDE
and accused-appellant Don Rodrigueza is hereby ACQUITTED of the crime charged. It is hereby
ordered that he be immediately released from custody unless he is otherwise detained for some other
lawful cause. SO ORDERED. Melencio-Herrera, Paras, Padilla and Nocon, JJ., concur.














235







Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 101837 February 11, 1992
ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168,
Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.
FELICIANO, J .:
According to the findings of the San Juan Police in their Investigation Report,
1
on 2 July 1991, Eldon
Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St.
Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or
"wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly
bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his car.
Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was able to
take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting
and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol.
Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out where the suspect had
come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the
shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the
cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he
positively identified him as the same person who had shot Maguan. Having established that the
assailant was probably the petitioner, the police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports
that he was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith
detained him. An eyewitness to the shooting, who was at the police station at that time, positively
identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated
homicide
2
against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant
Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of his
lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a
waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any
such waiver.
236

On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be
filed in court, the victim, Eldon Maguan, died of his gunshot wound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide,
filed an information for murder
3
before the Regional Trial Court. No bail was recommended. At the
bottom of the information, the Prosecutor certified that no preliminary investigation had been conducted
because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised
Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an
omnibus motion for immediate release and proper preliminary investigation,
4
alleging that the
warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted
before the information was filed. Petitioner also prayed that he be released on recognizance or on bail.
Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the motion
itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of
P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle
5
in order to expedite action
on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on
the same date, approved the cash bond
6
posted by petitioner and ordered his release.
7
Petitioner was
in fact released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct
preliminary investigation
8
and prayed that in the meantime all proceedings in the court be suspended.
He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus
motion for immediate release and preliminary investigation, which motion had been granted by
Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The
Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991.
Also on 16 July 1991, the trial court issued an Order
9
granting leave to conduct preliminary investigation
and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded
its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an Order,
10
embodying the following:
(1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of
the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to
conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion for
immediate release and preliminary investigation dated 11 July 1991 was treated as a petition for bail and
set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme
Court assailing the 17 July 1991 Order, contending that the information was null and void because no
preliminary investigation had been previously conducted, in violation of his right to due process.
Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme
Court of his petition; this motion was, however, denied by respondent Judge.
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and
mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of
petitioner on 23 August 1991.
237

On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of
Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was
arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not
guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on
2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991.
11

On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged
that in view of public respondent's failure to join issues in the petition for certiorari earlier filed by him,
after the lapse of more than a month, thus prolonging his detention, he was entitled to be released on
habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas corpus.
13
The petition for certiorari,
prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were
subsequently consolidated in the Court of Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain
his arraignment on the ground that that motion had become moot and academic.
On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first
witness.
On 23 September 1991, the Court of Appeals rendered a consolidated decision
14
dismissing the two (2)
petitions, on the following grounds:
a. Petitioner's warrantless arrest was valid because the offense for which he was
arrested and charged had been "freshly committed." His identity had been established
through investigation. At the time he showed up at the police station, there had been an
existing manhunt for him. During the confrontation at the San Juan Police Station, one
witness positively identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest.
He waived his right to preliminary investigation by not invoking it properly and
seasonably under the Rules.
c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order
because the trial court had the inherent power to amend and control its processes so as
to make them conformable to law and justice.
d. Since there was a valid information for murder against petitioner and a valid
commitment order (issued by the trial judge after petitioner surrendered to the authorities
whereby petitioner was given to the custody of the Provincial Warden), the petition for
habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for
petitioner also filed a "Withdrawal of Appearance"
15
with the trial court, with petitioner's conformity.
On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the
Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal
case below until further orders from this Court.
In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful
warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and second,
238

whether petitioner had effectively waived his right to preliminary investigation. We consider these issues
seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had
been validly arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon
Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly arrested
six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno v. Station
Commander, etc., et al.,
16
one of the seven (7) cases consolidated with In the Matter of the Petition for
Habeas Corpus of Roberto Umil, etc., v. Ramos, et al.
17
where a majority of the Court upheld a
warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which
Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section
7, Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the
provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the
information for murder even without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went
to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner
argues, the crime had not been "just committed" at the time that he was arrested. Moreover, none of the
police officers who arrested him had been an eyewitness to the shooting of Maguan and accordingly
none had the "personal knowledge" required for the lawfulness of a warrantees arrest. Since there had
been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court which establishes the only
exception to the right to preliminary investigation, could not apply in respect of petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of
this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the
warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission of the
offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were
subversion, membership in an outlawed organization like the New People's Army, etc. In the instant
case, the offense for which petitioner was arrested was murder, an offense which was obviously
commenced and completed at one definite location in time and space. No one had pretended that the
fatal shooting of Maguan was a "continuing crime."
Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case
falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides
as follows:
Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may,
without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceed against in accordance with Rule 112, Section 7.
239

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers
obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly shot
Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as
effected "when [the shooting had] in fact just been committed" within the meaning of Section 5(b).
Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner
was the gunman who had shot Maguan. The information upon which the police acted had been derived
from statements made by alleged eyewitnesses to the shooting one stated that petitioner was the
gunman; another was able to take down the alleged gunman's car's plate number which turned out to be
registered in petitioner's wife's name. That information did not, however, constitute "personal
knowledge."
18

It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of
Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides:
Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial Court the
complaint or information may be filed by the offended party, peace officer or fiscal
without a preliminary investigation having been first conducted, on the basis of the
affidavit of the offended party or arresting office or person
However, before the filing of such complaint or information, the person arrested may ask
for a preliminary investigation by a proper officer in accordance with this Rule, but he
must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a
responsible person of his choice. Notwithstanding such waiver, he may apply for bail as
provided in the corresponding rule and the investigation must be terminated within fifteen
(15) days from its inception.
If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing of
the information, ask for a preliminary investigation with the same right to adduce
evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police
Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police
authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication
he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the
police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately
scheduled a preliminary investigation to determine whether there was probable cause for charging
petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed
under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to
waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a
preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary
investigation and that right should have been accorded him without any conditions. Moreover, since
petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith
subject only to his appearing at the preliminary investigation.
Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation,
we note that petitioner had from the very beginning demanded that a preliminary investigation be
conducted. As earlier pointed out, on the same day that the information for murder was filed with the
Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for immediate release and
preliminary investigation. The Solicitor General contends that that omnibus motion should have been
filed with the trial court and not with the Prosecutor, and that the petitioner should accordingly be held to
have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory
right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation
240

was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing
of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial
Court: it is not clear from the record whether petitioner was aware of this fact at the time his omnibus
motion was actually filed with the Prosecutor. In Crespo v. Mogul,
19
this Court held:
The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists to warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. In turn, as above stated,
the filing of said information sets in motion the criminal action against the accused in
Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such
stage, the permission of the Court must be secured. After such reinvestigation the finding
and recommendations of the fiscal should be submitted to the Court for appropriate
action. While it is true that the fiscal has the quasi-judicial discretion to determine
whether or not a criminal case should be filed in court or not, once the case had already
been brought to Court whatever disposition the fiscal may feel should be proper in the
case thereafter should be addressed for the consideration of the Court. The only
qualification is that the action of the Court must not impair the substantial rights of the
accused., or the right of the People to due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case [such] as its dismissal or the conviction or acquittal of
the accused rests in the sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case is already
in Court he cannot impose his opinion on the trial court. The Court is the best and sole
judge on what to do with the case before it. . . .
20
(Citations omitted; emphasis supplied)
Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and
not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor
himself did file with the trial court, on the 5th day after filing the information for murder, a motion
for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's
omnibus motion), we conclude that petitioner's omnibus motion was in effect filed with the trial
court. What was crystal clear was that petitioner did ask for a preliminary investigation on the
very day that the information was filed without such preliminary investigation, and that the trial
court was five (5) days later apprised of the desire of the petitioner for such preliminary
investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct
preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the
Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day
reglementary period in Section 7, Rule 112 must be held to have been substantially complied
with.
We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that
right is statutory rather than constitutional in its fundament, since it has in fact been established by
statute, it is a component part of due process in criminal justice.
21
The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense and hence formally at risk
of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right.
The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to
speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to
hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be
to deprive him the full measure of his right to due process.
The question may be raised whether petitioner still retains his right to a preliminary investigation in the
instant case considering that he was already arraigned on 23 August 1991. The rule is that the right to
preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a
241

plea at arraignment.
22
In the instant case, petitioner Go had vigorously insisted on his right to
preliminary investigation before his arraignment. At the time of his arraignment, petitioner was already
before the Court of Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary
investigation before being forced to stand trial.
Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his
right to preliminary investigation. In People v. Selfaison,
23
we did hold that appellants there had waived
their right to preliminary investigation because immediately after their arrest, they filed bail and
proceeded to trial "without previously claiming that they did not have the benefit of a preliminary
investigation."
24
In the instant case, petitioner Go asked for release on recognizance or on bail and for
preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by petitioner and ordered his
release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on
the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary
investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary
investigation, while constituting a denial of the appropriate and full measure of the statutory process of
criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the
trial court.
25

It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This
was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his
hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent Judge
recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48)
hours from notice, was plainly arbitrary considering that no evidence at all and certainly no new or
additional evidence had been submitted to respondent Judge that could have justified the recall of his
order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a
matter of right.
The final question which the Court must face is this: how does the fact that, in the instant case, trial on
the merits has already commenced, the Prosecutor having already presented four (4) witnesses, impact
upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to be
released on bail? Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a
preliminary investigation although trial on the merits has already began. Trial on the merits should be
suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner.
26
It is
true that the Prosecutor might, in view of the evidence that he may at this time have on hand, conclude
that probable cause exists; upon the other hand, the Prosecutor conceivably could reach the conclusion
that the evidence on hand does not warrant a finding of probable cause. In any event, the constitutional
point is that petitioner was not accorded what he was entitled to by way of procedural due process.
27

Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary
investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he
submitted to arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking .
During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of
petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and
objection to the arraignment precisely because of the denial of preliminary investigation.
28
So energetic
and determined were petitioner's counsel's protests and objections that an obviously angered court and
prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the
trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his
objection to going to trial without preliminary investigation: petitioner's counsel made of record his
"continuing objection."
29
Petitioner had promptly gone to the appellate court on certiorari and prohibition
242

to challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his
detention.
30
If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it
was because he was extremely loath to be represented by counsel de oficio selected by the trial judge,
and to run the risk of being held to have waived also his right to use what is frequently the only test of
truth in the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be
released on bail as a matter of right. Should the evidence already of record concerning petitioner's guilt
be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court for
cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective
assessment of the evidence on record, to grant or deny the motion for cancellation of bail.
To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation
and to bail were effectively obliterated by evidence subsequently admitted into the record would be to
legitimize the deprivation of due process and to permit the Government to benefit from its own wrong or
culpable omission and effectively to dilute important rights of accused persons well-nigh to the vanishing
point. It may be that to require the State to accord petitioner his rights to a preliminary investigation and
to bail at this point, could turn out ultimately to be largely a ceremonial exercise. But the Court is not
compelled to speculate. And, in any case, it would not be idle ceremony; rather, it would be a celebration
by the State of the rights and liberties of its own people and a re-affirmation of its obligation and
determination to respect those rights and liberties.
ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the
trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of
Appeals dated 23 September 1991 hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary
investigation of the charge of murder against petitioner Go, and to complete such preliminary
investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits of
the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the
preliminary investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One
Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful order that
the trial court may issue, should the Office of the Provincial Prosecutor move for cancellation of bail at
the conclusion of the preliminary investigation.
No pronouncement as to costs. This Decision is immediately executory.
SO ORDERED.
Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.





243







Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 89139 August 2, 1990
ROMEO POSADAS y ZAMORA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.
Rudy G. Agravate for petitioner.
GANCAYCO, J .:
The validity of a warrantless search on the person of petitioner is put into issue in this case.
On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab and Pat. Umbra Umpar,
both members of the Integrated National Police (INP) of the Davao Metrodiscom assigned with the
Intelligence Task Force, were conducting a surveillance along Magallanes Street, Davao City. While
they were within the premises of the Rizal Memorial Colleges they spotted petitioner carrying a "buri"
bag and they noticed him to be acting suspiciously.
They approached the petitioner and identified themselves as members of the INP. Petitioner attempted
to flee but his attempt to get away was thwarted by the two notwithstanding his resistance.
They then checked the "buri" bag of the petitioner where they found one (1) caliber .38 Smith & Wesson
revolver with Serial No. 770196
1
two (2) rounds of live ammunition for a .38 caliber gun
2
a smoke (tear
gas) grenade,
3
and two (2) live ammunitions for a .22 caliber gun.
4
They brought the petitioner to the
police station for further investigation. In the course of the same, the petitioner was asked to show the
necessary license or authority to possess firearms and ammunitions found in his possession but he
failed to do so. He was then taken to the Davao Metrodiscom office and the prohibited articles recovered
from him were indorsed to M/Sgt. Didoy the officer then on duty. He was prosecuted for illegal
possession of firearms and ammunitions in the Regional Trial Court of Davao City wherein after a plea of
not guilty and trial on the merits a decision was rendered on October 8, 1987 finding petitioner guilty of
the offense charged as follows:
WHEREFORE, in view of all the foregoing, this Court , finds the accused guilty beyond
reasonable doubt of the offense charged.
244

It appearing that the accuse d was below eighteen (18) years old at the time of the
commission of the offense (Art. 68, par. 2), he is hereby sentenced to an indeterminate
penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor to TWELVE
(12) Years, FIVE (5) months and Eleven (11) days of Reclusion Temporal, and to pay the
costs.
The firearm, ammunitions and smoke grenade are forfeited in favor of the government
and the Branch Clerk of Court is hereby directed to turn over said items to the Chief,
Davao Metrodiscom, Davao City.
5

Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals wherein in due course
a decision was rendered on February 23, 1989 affirming in toto the appealed decision with costs against
the petitioner.
6

Hence, the herein petition for review, the main thrust of which is that there being no lawful arrest or
search and seizure, the items which were confiscated from the possession of the petitioner are
inadmissible in evidence against him.
The Solicitor General, in justifying the warrantless search of the buri bag then carried by the petitioner,
argues that under Section 12, Rule 136 of the Rules of Court a person lawfully arrested may be
searched for dangerous weapons or anything used as proof of a commission of an offense without a
search warrant. It is further alleged that the arrest without a warrant of the petitioner was lawful under
the circumstances.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as follows:
SEC. 5. Arrest without warrant; when lawful A peace officer or a private person may,
without a warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7. (6a, 17a)
From the foregoing provision of law it is clear that an arrest without a warrant may be effected by a
peace officer or private person, among others, when in his presence the person to be arrested has
committed, is actually committing, or is attempting to commit an offense; or when an offense has in fact
just been committed, and he has personal knowledge of the facts indicating that the person arrested has
committed it.
The Solicitor General argues that when the two policemen approached the petitioner, he was actually
committing or had just committed the offense of illegal possession of firearms and ammunitions in the
presence of the police officers and consequently the search and seizure of the contraband was
245

incidental to the lawful arrest in accordance with Section 12, Rule 126 of the 1985 Rules on Criminal
Procedure. We disagree.
At the time the peace officers in this case identified themselves and apprehended the petitioner as he
attempted to flee they did not know that he had committed, or was actually committing the offense of
illegal possession of firearms and ammunitions. They just suspected that he was hiding something in the
buri bag. They did now know what its contents were. The said circumstances did not justify an arrest
without a warrant.
However, there are many instances where a warrant and seizure can be effected without necessarily
being preceded by an arrest, foremost of which is the "stop and search" without a search warrant at
military or police checkpoints, the constitutionality or validity of which has been upheld by this Court in
Valmonte vs. de Villa,
7
as follows:
Petitioner Valmonte's general allegation to the effect that he had been stopped and
searched without a search warrant by the military manning the checkpoints, without
more, i.e., without stating the details of the incidents which amount to a violation of his
light against unlawful search and seizure, is not sufficient to enable the Court to
determine whether there was a violation of Valmonte's right against unlawful search and
seizure. Not all searches and seizures are prohibited. Those which are reasonable are
not forbidden. A reasonable search is not to be determined by any fixed formula but is to
be resolved according to the facts of each case.
Where, for example, the officer merely draws aside the curtain of a vacant vehicle which
is parked on the public fair grounds, or simply looks into a vehicle or flashes a light
therein, these do not constitute unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and probably in other areas)
may be considered as a security measure to enable the NCRDC to pursue its mission of
establishing effective territorial defense and maintaining peace and order for the benefit
of the public. Checkpoints may also be regarded as measures to thwart plots to
destabilize the government in the interest of public security. In this connection, the Court
may take judicial notice of the shift to urban centers and their suburbs of the insurgency
movement, so clearly reflected in the increased killings in cities of police and military men
by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the
alarming rise in lawlessness and violence in such urban centers, not all of which are
reported in media, most likely brought about by deteriorating economic conditions
which all sum up to what one can rightly consider, at the very least, as abnormal times.
Between the inherent right of the state to protect its existence and promote public welfare
and an individual's right against a warrantless search which is however reasonably
conducted, the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the men in
uniform in the same manner that all governmental power is susceptible of abuse. But, at
the cost of occasional inconvenience, discomfort and even irritation to the citizen, the
checkpoints during these abnormal times, when conducted within reasonable limits, are
part of the price we pay for an orderly society and a peaceful community. (Emphasis
supplied).
Thus, as between a warrantless search and seizure conducted at military or police checkpoints and the
search thereat in the case at bar, there is no question that, indeed, the latter is more reasonable
considering that unlike in the former, it was effected on the basis of a probable cause. The probable
cause is that when the petitioner acted suspiciously and attempted to flee with the buri bag there was a
probable cause that he was concealing something illegal in the bag and it was the right and duty of the
police officers to inspect the same.
246

It is too much indeed to require the police officers to search the bag in the possession of the petitioner
only after they shall have obtained a search warrant for the purpose. Such an exercise may prove to be
useless, futile and much too late.
In People vs. CFI of Rizal,
8
this Court held as follows:
. . . In the ordinary cases where warrant is indispensably necessary, the mechanics
prescribed by the Constitution and reiterated in the Rules of Court must be followed and
satisfied. But We need not argue that there are exceptions. Thus in the extraordinary
events where warrant is not necessary to effect a valid search or seizure, or when the
latter cannot be performed except without warrant, what constitutes a reasonable or
unreasonable search or seizure becomes purely a judicial question, determinable from
the uniqueness of the circumstances involved, including the purpose of the search or
seizure, the presence or absence of probable cause, the manner in which the search and
seizure was made, the place or thing searched and the character of the articles
procured.
The Court reproduces with approval the following disquisition of the Solicitor General:
The assailed search and seizure may still be justified as akin to a "stop and frisk"
situation whose object is either to determine the identity of a suspicious individual or to
maintain the status quo momentarily while the police officer seeks to obtain more
information. This is illustrated in the case of Terry vs. Ohio, 392 U.S. 1 (1968). In this
case, two men repeatedly walked past a store window and returned to a spot where they
apparently conferred with a third man. This aroused the suspicion of a police officer. To
the experienced officer, the behaviour of the men indicated that they were sizing up the
store for an armed robbery. When the police officer approached the men and asked them
for their names, they mumbled a reply. Whereupon, the officer grabbed one of them,
spun him around and frisked him. Finding a concealed weapon in one, he did the same
to the other two and found another weapon. In the prosecution for the offense of carrying
a concealed weapon, the defense of illegal search and seizure was put up. The United
States Supreme Court held that "a police officer may in appropriate circumstances and in
an appropriate manner approach a person for the purpose of investigating possible
criminal behaviour even though there is no probable cause to make an arrest." In such a
situation, it is reasonable for an officer rather than simply to shrug his shoulder and allow
a crime to occur, to stop a suspicious individual briefly in order to determine his identity
or maintain the status quo while obtaining more information. . . .
Clearly, the search in the case at bar can be sustained under the exceptions heretofore discussed, and
hence, the constitutional guarantee against unreasonable searches and seizures has not been violated.
9

WHEREFORE, the petition is DENIED with costs against petitioner.
SO ORDERED.
Narvasa (Chairman), Cruz, Grio-Aquino and Medialdea, JJ., concur.



247







Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 87059 June 22, 1992
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGELIO MENGOTE y TEJAS, accused-appellant.
CRUZ, J .:
Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength
mainly of the stolen pistol found on his person at the moment of his warrantless arrest. In this appeal, he
pleads that the weapon was not admissible as evidence against him because it had been illegally seized
and was therefore the fruit of the poisonous tree. The Government disagrees. It insists that the revolver
was validly received in evidence by the trial judge because its seizure was incidental to an arrest that
was doubtless lawful even if admittedly without warrant.
The incident occurred shortly before noon of August 8, 1987, after the Western Police District received a
telephone call from an informer that there were three suspicious-looking persons at the corner of Juan
Luna and North Bay Boulevard in Tondo, Manila. A surveillance team of plainclothesmen was forthwith
dispatched to the place. As later narrated at the trial by Patrolmen Rolando Mercado and Alberto Juan,
1

they there saw two men "looking from side to side," one of whom was holding his abdomen. They
approached these persons and identified themselves as policemen, whereupon the two tried to run away
but were unable to escape because the other lawmen had surrounded them. The suspects were then
searched. One of them, who turned out to be the accused-appellant, was found with a .38 caliber Smith
and Wesson revolver with six live bullets in the chamber. His companion, later identified as Nicanor
Morellos, had a fan knife secreted in his front right pants pocket. The weapons were taken from them.
Mengote and Morellos were then turned over to police headquarters for investigation by the Intelligence
Division.
On August 11, 1987, the following information was filed against the accused-appellant before the
Regional Trial Court of Manila:
The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of Presidential
Decree No. 1866, committed as follows:
248

That on or about August 8, 1987, in the City of Manila, Philippines, the said accused did
then and there wilfully, unlawfully and knowingly have in his possession and under his
custody and control a firearm, to wit:
one (1) cal. 38 "S & W" bearing
Serial No. 8720-T
without first having secured the necessary license or permit therefor from the proper
authorities.
Besides the police officers, one other witness presented by the prosecution was Rigoberto Danganan,
who identified the subject weapon as among the articles stolen from him during the robbery in his house
in Malabon on June 13, 1987. He pointed to Mengote as one of the robbers. He had duly reported the
robbery to the police, indicating the articles stolen from him, including the revolver.
2
For his part,
Mengote made no effort to prove that he owned the firearm or that he was licensed to possess it and
claimed instead that the weapon had been "Planted" on him at the time of his arrest.
3

The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and admitted
over the objection of the defense. As previously stated, the weapon was the principal evidence that led
to Mengote's conviction for violation of P.D. 1866. He was sentenced to reclusion
perpetua.
4

It is submitted in the Appellant's Brief that the revolver should not have been admitted in evidence
because of its illegal seizure. no warrant therefor having been previously obtained. Neither could it have
been seized as an incident of a lawful arrest because the arrest of Mengote was itself unlawful, having
been also effected without a warrant. The defense also contends that the testimony regarding the
alleged robbery in Danganan's house was irrelevant and should also have been disregarded by the trial
court.
The following are the pertinent provision of the Bill of Rights:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
Sec. 3 (1). The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in
any proceeding for any purpose. That is the absolute prohibition of Article III, Section 3(2), of the
Constitution. This is the celebrated exclusionary rule based on the justification given by Judge Learned
Hand that "only in case the prosecution, which itself controls the seizing officials, knows that it cannot
profit by their wrong will the wrong be repressed." The Solicitor General, while conceding the rule,
maintains that it is not applicable in the case at bar. His reason is that the arrest and search of Mengote
and the seizure of the revolver from him were lawful under Rule 113, Section 5, of the Rules of Court
reading as follows:
249

Sec. 5. Arrest without warrant when lawful. A peace officer or private person may,
without a warrant, arrest a person;
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
In cases failing under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7.
We have carefully examined the wording of this Rule and cannot see how we can agree with the
prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal institution
when he was arrested. We therefore confine ourselves to determining the lawfulness of his arrest under
either Par. (a) or Par. (b) of this section.
Par. (a) requires that the person be arrested (1) after he has committed or while he is actually
committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer.
These requirements have not been established in the case at bar. At the time of the arrest in question,
the accused-appellant was merely "looking from side to side" and "holding his abdomen," according to
the arresting officers themselves. There was apparently no offense that had just been committed or was
being actually committed or at least being attempted by Mengote in their presence.
The Solicitor General submits that the actual existence of an offense was not necessary as long as
Mengote's acts "created a reasonable suspicion on the part of the arresting officers and induced in them
the belief that an offense had been committed and that the accused-appellant had committed it." The
question is, What offense? What offense could possibly have been suggested by a person "looking from
side to side" and "holding his abdomen" and in a place not exactly forsaken?
These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might
have been different if Mengote bad been apprehended at an ungodly hour and in a place where he had
no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the
morning and in a crowded street shortly after alighting from a passenger jeep with I his companion. He
was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine
about his being on that street at that busy hour in the blaze of the noonday sun.
On the other hand, there could have been a number of reasons, all of them innocent, why his eyes were
darting from side to side and be was holding his abdomen. If they excited suspicion in the minds of the
arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion
was all about. In fact, the policemen themselves testified that they were dispatched to that place only
because of the telephone call from the informer that there were "suspicious-looking" persons in that
vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not explain why he
thought the men looked suspicious nor did he elaborate on the impending crime.
250

In the recent case of People v. Malmstedt,
5
the Court sustained the warrantless arrest of the accused
because there was a bulge in his waist that excited the suspicion of the arresting officer and, upon
inspection, turned out to be a pouch containing hashish. In People v. Claudio,
6
the accused boarded a
bus and placed the buri bag she was carrying behind the seat of the arresting officer while she herself
sat in the seat before him. His suspicion aroused, be surreptitiously examined the bag, which he found
to contain marijuana. He then and there made the warrantless arrest and seizure that we subsequently
upheld on the ground that probable cause had been sufficiently established.
The case before us is different because there was nothing to support the arresting officers' suspicion
other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could
it have been inferred from these acts that an offense had just been committed, or was actually being
committed, or was at least being attempted in their presence.
This case is similar to People v. Aminnudin,
7
where the Court held that the warrantless arrest of the
accused was unconstitutional. This was effected while be was coming down a vessel, to all appearances
no less innocent than the other disembarking passengers. He had not committed nor was be actually
committing or attempting to commit an offense in the presence of the arresting officers. He was not even
acting suspiciously. In short, there was no probable cause that, as the prosecution incorrectly
suggested, dispensed with the constitutional requirement of a warrant.
Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied.
The prosecution has not shown that at the time of Mengote's arrest an offense had in fact just been
committed and that the arresting officers had personal knowledge of facts indicating that Mengote had
committed it. All they had was hearsay information from the telephone caller, and about a crime that had
yet to be committed.
The truth is that they did not know then what offense, if at all, had been committed and neither were they
aware of the participation therein of the accused-appellant. It was only later, after Danganan had
appeared at the Police headquarters, that they learned of the robbery in his house and of Mengote's
supposed involvement therein. 8 As for the illegal possession of the firearm found on Mengote's person,
the policemen discovered this only after he had been searched and the investigation conducted later
revealed that he was not its owners nor was he licensed to possess it.
Before these events, the Peace officers had no knowledge even of Mengote' identity, let alone the fact
(or suspicion) that he was unlawfully carrying a firearm or that he was involved in the robbery of
Danganan's house.
In the landmark case of People v. Burgos,
9
this Court declared:
Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is
committing, or is about to commit an offense must have personal knowledge of the fact.
The offense must also be committed in his presence or within his view. (Sayo v. Chief of
Police, 80 Phil. 859). (Emphasis supplied)
xxx xxx xxx
In arrests without a warrant under Section 6(b), however, it is not enough that there is
reasonable ground to believe that the person to be arrested has committed a crime. A
crime must in fact or actually have been committed first. That a crime has actually been
committed is an essential precondition. It is not enough to suspect that a crime may have
been committed. The fact of the commission of the offense must be undisputed. The test
of reasonable ground applies only to the identity of the perpetrator. (Emphasis supplied)
This doctrine was affirmed in Alih v. Castro,
10
thus:
251

If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection
with a crime about to be committed, being committed, or just committed, what was that
crime? There is no allegation in the record of such a falsification. Parenthetically, it may
be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest
must have personal knowledge of the ground therefor as stressed in the recent case of
People v. Burgos. (Emphasis supplied)
It would be a sad day, indeed, if any person could be summarily arrested and searched just because he
is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could
clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal
act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a
police state where order is exalted over liberty or, worse, personal malice on the part of the arresting
officer may be justified in the name of security.
There is no need to discuss the other issues raised by the accused-appellant as the ruling we here make
is sufficient to sustain his exoneration. Without the evidence of the firearm taken from him at the time of
his illegal arrest, the prosecution has lost its most important exhibit and must therefore fail. The
testimonial evidence against Mengote (which is based on the said firearm) is not sufficient to prove his
guilt beyond reasonable doubt of the crime imputed to him.
We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-appellant not
only in the brief but also in the reply brief, which she did not have to file but did so just the same to stress
the constitutional rights of her client. The fact that she was acting only as a counsel de oficio with no
expectation of material reward makes her representation even more commendable.
The Court feels that if the peace officers had been more mindful of the provisions of the Bill of Rights,
the prosecution of the accused-appellant might have succeeded. As it happened, they allowed their
over-zealousness to get the better of them, resulting in their disregard of the requirements of a valid
search and seizure that rendered inadmissible the vital evidence they had invalidly seized.
This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the
acquittal of persons who deserve to be convicted, escaping the clutches of the law because, ironically
enough, it has not been observed by those who are supposed to enforce it.
WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is
ACQUITTED and ordered released immediately unless he is validly detained for other offenses. No
costs.
SO ORDERED.
Grio-Aquino, Medialdea and Bellosillo, JJ., concur.






252






Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 123595 December 12, 1997
SAMMY MALACAT y MANDAR, petitioner,
vs.
COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.
DAVIDE, JR., J .:
In an Information
1
filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial
Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating
Section 3 of Presidential Decree No. 1866,
2
as follows:
That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did
then and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand
grenade, without first securing the necessary license and/or permit therefor from the
proper authorities.
At arraignment
3
on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-2,"
4
while
the prosecution admitted that the police authorities were not armed with a search warrant nor warrant of
arrest at the time they arrested petitioner.
5

At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo
Yu, the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who
examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police,
Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to
bomb threats reported seven days earlier, he was on foot patrol with three other police officers (all of
them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza
Miranda. They chanced upon two groups of Muslim-looking men, with each group, comprised of three to
four men, posted at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store.
These men were acting suspiciously with "[t]heir eyes. . . moving very fast."
6

Yu and his companions positioned themselves at strategic points and observed both groups for about
thirty minutes. The police officers then approached one group of men, who then fled in different
253

directions. As the policemen gave chase, Yu caught up with and apprehended petitioner. Upon
searching petitioner, Yu found a fragmentation grenade tucked inside petitioner's "front waist line."
7
Yu's
companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber
revolver was recovered. Petitioner and Casan were then brought to Police Station No. 3 where Yu
placed an "X" mark at the bottom of the grenade and thereafter gave it to his commander.
8

On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of
Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized
petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2
others attempt to detonate a grenade. The attempt was aborted when Yu and other policemen chased
petitioner and his companions; however, the former were unable to catch any of the latter. Yu further
admitted that petitioner and Casan were merely standing on the corner of Quezon Boulevard when Yu
saw them on 27 August 1990. Although they were not creating a commotion, since they were
supposedly acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt
for the grenade he allegedly recovered from petitioner.
9

Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul
Casan were brought in by Sgt. Saquilla
10
for investigation. Forthwith, Serapio conducted the inquest of
the two suspects, informing them of their rights to remain silent and to be assisted by competent and
independent counsel. Despite Serapio's advice, petitioner and Casan manifested their willingness to
answer questions even without the assistance of a lawyer. Serapio then took petitioner's uncounselled
confession (Exh. "E"), there being no PAO lawyer available, wherein petitioner admitted possession of
the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner and
Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of
the Explosive Ordinance Disposal Unit for examination.
11

On cross-examination, Serapio admitted that he took petitioner's confession knowing it was inadmissible
in evidence.
12

Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other
things, the examination of explosive devices, testified that on 22 March 1991, he received a request
dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade.
Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and time he
received the specimen. During the preliminary examination of the grenade, he "[f]ound that [the] major
components consisting of [a] high filler and fuse assembly [were] all present," and concluded that the
grenade was "[l]ive and capable of exploding." On even date, he issued a certification stating his
findings, a copy of which he forwarded to Diotoy on 11 August 1991.
13

Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and
resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he
went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered
all males to stand aside. The policemen searched petitioner and two other men, but found nothing in
their possession. However, he was arrested with two others, brought to and detained at Precinct No. 3,
where he was accused of having shot a police officer. The officer showed the gunshot wounds he
allegedly sustained and shouted at petitioner "[i]to ang tama mo sa akin." This officer then inserted the
muzzle of his gun into petitioner's mouth and said, "[y]ou are the one who shot me." Petitioner denied
the charges and explained that he only recently arrived in Manila. However, several other police officers
mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was
found on him. He saw the grenade only in court when it was presented.
14

The trial court ruled that the warrantless search and seizure of petitioner was akin to it a "stop and frisk,"
where a "warrant and seizure can be effected without necessarily being preceded by an arrest" and
"whose object is either to maintain the status quo momentarily while the police officer seeks to obtain
more information."
15
Probable cause was not required as it was not certain that a crime had been
committed, however, the situation called for an investigation, hence to require probable cause would
254

have been "premature."
16
The RTC emphasized that Yu and his companions were "[c]onfronted with an
emergency, in which the delay necessary to obtain a warrant, threatens the destruction of evidence"
17

and the officers "[h]ad to act in haste," as petitioner and his companions were acting suspiciously,
considering the time, place and "reported cases of bombing." Further, petitioner's group suddenly ran
away in different directions as they saw the arresting officers approach, thus "[i]t is reasonable for an
officer to conduct a limited search, the purpose of which is not necessarily to discover evidence of a
crime, but to allow the officer to pursue his investigation without fear of violence."
18

The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest,
and since petitioner "[l]ater voluntarily admitted such fact to the police investigator for the purpose of
bombing the Mercury Drug Store," concluded that sufficient evidence existed to establish petitioner's
guilt beyond reasonable doubt.
In its decision
19
dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found
petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 186, and
sentenced him to suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE
(1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30)
YEARS OF RECLUSION PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of appeal
20
indicating that he was appealing to this Court.
However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R.
CR No. 15988 and issued a notice to file briefs.
21

In his Appellant's Brief
22
filed with the Court of Appeals, petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH
UPON THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE
OF THE ALLEGED HANDGRENADE FROM HIM "WAS AN
APPROPRIATE INCIDENT TO HIS ARREST."
2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE
AGAINST ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY
SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE
AND ILLEGAL SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions
provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote.
23
As such, the
search was illegal, and the hand grenade seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that
its decision be affirmed in toto.
24

In its decision of 24 January 1996,
25
the Court of Appeals affirmed the trial court, noting, first, that
petitioner abandoned his original theory before the court a quo that the grenade was "planted" by the
police officers; and second, the factual finding of the trial court that the grenade was seized from
petitioner's possession was not raised as an issue. Further, respondent court focused on the
admissibility in evidence of Exhibit "D," the hand grenade seized from petitioner. Meeting the issue
squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable
cause for the arrest as petitioner was "attempting to commit an offense," thus:
We are at a loss to understand how a man, who was in possession of a live grenade and
in the company of other suspicious character[s] with unlicensed firearm[s] lurking in
255

Plaza Miranda at a time when political tension ha[d] been enkindling a series of terroristic
activities, [can] claim that he was not attempting to commit an offense. We need not
mention that Plaza Miranda is historically notorious for being a favorite bomb site
especially during times of political upheaval. As the mere possession of an unlicensed
grenade is by itself an offense, Malacat's posture is simply too preposterous to inspire
belief.
In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the
prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact
that PO Yu chased petitioner two days prior to the latter's arrest, or on 27 August 1990; and that
petitioner and his companions acted suspiciously, the "accumulation" of which was more than sufficient
to convince a reasonable man that an offense was about to be committed. Moreover, the Court of
Appeals observed:
The police officers in such a volatile situation would be guilty of gross negligence and
dereliction of duty, not to mention of gross incompetence, if they [would] first wait for
Malacat to hurl the grenade, and kill several innocent persons while maiming numerous
others, before arriving at what would then be an assured but moot conclusion that there
was indeed probable cause for an arrest. We are in agreement with the lower court in
saying that the probable cause in such a situation should not be the kind of proof
necessary to convict, but rather the practical considerations of everyday life on which a
reasonable and prudent mind, and not legal technicians, will ordinarily act.
Finally, the Court of Appeals held that the rule laid down in People v. Mengote,
26
which petitioner relied
upon, was inapplicable in light of "[c]rucial differences," to wit:
[In Mengote] the police officers never received any intelligence report that someone [at]
the corner of a busy street [would] be in possession of a prohibited article. Here the
police officers were responding to a [sic] public clamor to put a check on the series of
terroristic bombings in the Metropolis, and, after receiving intelligence reports about a
bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they
conducted foot patrols for about seven days to observe suspicious movements in the
area. Furthermore, in Mengote, the police officers [had] no personal knowledge that the
person arrested has committed, is actually committing, or is attempting to commit an
offense. Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in
Plaza Miranda two days before he finally succeeded in apprehending him.
Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following
errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING
OF THE TRIAL COURT THAT THE WARRANTIES ARREST OF
PETITIONER WAS VALID AND LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE
RULING IN PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION
IN THE INSTANT CASE.
In support thereof, petitioner merely restates his arguments below regarding the validity of the
warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he
was "attempting to commit a crime," as the evidence for the prosecution merely disclosed that he
was "standing at the corner of Plaza Miranda and Quezon Boulevard" with his eyes "moving very
fast" and "looking at every person that come (sic) nearer (sic) to them." Finally, petitioner points
256

out the factual similarities between his case and that of People v. Mengote to demonstrate that
the Court of Appeals miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision..
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed
by the trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF
RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF
RECLUSION PERPETUA, as maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully
possess grenades is reclusion temporal in its maximum period to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not
the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal
therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the
Judiciary Reorganization Act of 1980 (B.P. Blg. 129),
27
in relation to Section 17 of the Judiciary Act of
1948,
28
Section 5(2) of Article VIII of the Constitution
29
and Section 3(c) of Rule 122 of the Rules of
Court.
30
The term "life imprisonment" as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948,
and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of
Article VIII of the Constitution.
Petitioner's Notice of Appeal indicated that he was appealing from the trial court's decision to this Court,
yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the
appeal.
We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and
consider the appeal as having been directly brought to us, with the petition for review as petitioner's Brief
for the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee
and the memoranda of the parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to
establish petitioner's guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from
petitioner's possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According
to him, he turned it over to his commander after putting an "X" mark at its bottom; however, the
commander was not presented to corroborate this claim. On the other hand, the grenade presented in
court and identified by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera
and police officer Diotoy not immediately after petitioner's arrest, but nearly seven (7) months later, or on
19 March 1991; further, there was no evidence whatsoever that what Ramilo received was the very
same grenade seized from petitioner. In his testimony, Yu never declared that the grenade passed on to
Ramilo was the grenade the former confiscated from petitioner. Yu did not, and was not made to, identify
the grenade examined by Ramilo, and the latter did not claim that the grenade he examined was that
seized from petitioner. Plainly, the law enforcement authorities failed to safeguard and preserve the
chain of evidence so crucial in cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about
to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest
them, then considering that Yu and his three fellow officers were in uniform and therefore easily
257

cognizable as police officers, it was then unnatural and against common experience that petitioner
simply stood there in proximity to the police officers. Note that Yu observed petitioner for thirty minutes
and must have been close enough to petitioner in order to discern petitioner's eyes "moving very fast."
Finally, even assuming that petitioner admitted possession of the grenade during his custodial
investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in
palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows:
Sec. 12 (1). Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his arrest. No
lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no
PAO lawyer was then available. Thus, even if petitioner consented to the investigation and
waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing,
neither was it executed in the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of
petitioner were invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly
effect the same.
31
The Constitutional prohibition against unreasonable arrests, searches and seizures
refers to those effected without a validly issued warrant,
32
subject to certain exceptions. As regards valid
warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part:
Sec. 5. Arrest, without warrant; when lawful A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped . . .
A warrantless arrest under the circumstances contemplated under Section 5(a) has been
denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a
"hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search
of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches;
33
(5) a search incidental
to a lawful arrest;
34
and (6) a "stop and frisk."
35

258

In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the
seizure of the grenade from the accused [as an appropriate incident to his arrest," hence necessitating a
brief discussion on the nature of these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search
incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite
quantum of proof before they may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental
search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest
was merely used as a pretext for conducting a search.
36
In this instance, the law requires that there first
be a lawful arrest before a search can be made the process cannot be reversed.
37
At bottom,
assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within
which the latter may reach for a weapon or for evidence to destroy, and seize any money or property
found which was used in the commission of the crime, or the fruit of the crime, or that which may be
used as evidence, or which might furnish the arrestee with the means of escaping or committing
violence.
38

Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in
light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on
the part of petitioner, indicating that a crime had just been committed, was being committed or was going
to be committed.
Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on
petitioner could not have been one incidental to a lawful arrest.
We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective
search of outer clothing for weapons," as laid down in Terry, thus:
We merely hold today that where a police officer observes unusual conduct which leads
him reasonably to conclude in light of his experience that criminal activity may be afoot
and that the persons with whom he is dealing may be armed and presently dangerous,
where in the course of investigating this behavior he identifies himself as a policeman
and makes reasonable inquiries, and where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others' safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover weapons which might be used to
assault him. Such a search is a reasonable search under the Fourth Amendment . . .
39

Other notable points of Terry are that while probable cause is not required to conduct a "stop
and frisk,"
40
it nevertheless holds that mere suspicion or a hunch will not validate a "stop and
frisk." A genuine reason must exist, in light of the police officer's experience and surrounding
conditions, to warrant the belief that the person detained has weapons concealed about him.
41

Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime
prevention and detection, which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner, approach a person for purposes of
investigating possible criminal behavior even without probable cause; and (2) the more pressing
interest of safety and self-preservation which permit the police officer to take steps to assure
himself that the person with whom he deals is not armed with a deadly weapon that could
unexpectedly and fatally be used against the police officer.
Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:
259

First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which
attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police report
or record nor corroborated by any other police officer who allegedly chased that group. Aside from
impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine reason
existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's testimony,
contrary to his claim that petitioner and his companions had to be chased before being apprehended,
the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police
officers, petitioner and his companions were "immediately collared."
Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even
mere suspicion other than that his eyes were "moving very fast" an observation which leaves us
incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m.,
thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not
creating any commotion or trouble, as Yu explicitly declared on cross-examination:
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or they did not
create any commotion.
A None, sir.
Q Neither did you see them create commotion?
A None, sir.
42

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a
deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered"
"inside the front waistline" of petitioner, and from all indications as to the distance between Yu and
petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been
visible to Yu. In fact, as noted by the trial court:
When the policemen approached the accused and his companions, they were not yet
aware that a handgrenade was tucked inside his waistline. They did not see any bulging
object in [sic] his person.
43

What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed in
Sections 2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R.
CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of
reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is
REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED
immediately released from detention, unless his further detention is justified for any other lawful cause.
Costs de oficio.
260

SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and
Martinez, JJ., concur.



Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R.No. 74869 July 6, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Herminio T. Llariza counsel de-officio for defendant-appellant.
CRUZ, J .:
The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried
and found guilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time
to put him away and sentenced him to life imprisonment plus a fine of P20,000.00.
1

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at
about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted
him, inspected his bag and finding what looked liked marijuana leaves took him to their headquarters for
investigation. The two bundles of suspect articles were confiscated from him and later taken to the NBI
laboratory for examination. When they were verified as marijuana leaves, an information for violation of
the Dangerous Drugs Act was filed against him.
2
Later, the information was amended to include Farida
Ali y Hassen, who had also been arrested with him that same evening and likewise investigated.
3
Both
were arraigned and pleaded not guilty.
4
Subsequently, the fiscal filed a motion to dismiss the charge
against Ali on the basis of a sworn statement of the arresting officers absolving her after a 'thorough
investigation."
5
The motion was granted, and trial proceeded only against the accused-appellant, who
was eventually convicted .
6

According to the prosecution, the PC officers had earlier received a tip from one of their informers that
the accused-appellant was on board a vessel bound for Iloilo City and was carrying marijuana.
7
He was
Identified by name.
8
Acting on this tip, they waited for him in the evening of June 25, 1984, and
approached him as he descended from the gangplank after the informer had pointed to him.
9
They
detained him and inspected the bag he was carrying. It was found to contain three kilos of what were
later analyzed as marijuana leaves by an NBI forensic examiner,
10
who testified that she conducted
microscopic, chemical and chromatographic tests on them. On the basis of this finding, the
corresponding charge was then filed against Aminnudin.
261

In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing
consisting of a jacket, two shirts and two pairs of pants.
11
He alleged that he was arbitrarily arrested and
immediately handcuffed. His bag was confiscated without a search warrant. At the PC headquarters, he
was manhandled to force him to admit he was carrying the marijuana, the investigator hitting him with a
piece of wood in the chest and arms even as he parried the blows while he was still handcuffed.
12
He
insisted he did not even know what marijuana looked like and that his business was selling watches and
sometimes cigarettes.
13
He also argued that the marijuana he was alleged to have been carrying was
not properly Identified and could have been any of several bundles kept in the stock room of the PC
headquarters.
14

The trial court was unconvinced, noting from its own examination of the accused that he claimed to have
come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that
purpose and spending P107.00 for fare, not to mention his other expenses.
15
Aminnudin testified that he
kept the two watches in a secret pocket below his belt but, strangely, they were not discovered when he
was bodily searched by the arresting officers nor were they damaged as a result of his manhandling.
16

He also said he sold one of the watches for P400.00 and gave away the other, although the watches
belonged not to him but to his cousin,
17
to a friend whose full name he said did not even know.
18
The
trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the
injuries sustained by him.
19

There is no justification to reverse these factual findings, considering that it was the trial judge who had
immediate access to the testimony of the witnesses and had the opportunity to weigh their credibility on
the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes,
which may reveal the truth or expose the lie, are not described in the impersonal record. But the trial
judge sees all of this, discovering for himself the truant fact amidst the falsities.
The only exception we may make in this case is the trial court's conclusion that the accused-appellant
was not really beaten up because he did not complain about it later nor did he submit to a medical
examination. That is hardly fair or realistic. It is possible Aminnudin never had that opportunity as he was
at that time under detention by the PC authorities and in fact has never been set free since he was
arrested in 1984 and up to the present. No bail has been allowed for his release.
There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was
arrested and searched without warrant, making the marijuana allegedly found in his possession
inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this
point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest of
Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on warrantless
arrests. This made the search also valid as incidental to a lawful arrest.
It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they
had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only
justification was the tip they had earlier received from a reliable and regular informer who reported to
them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the time
they received the tip, one saying it was two days before the arrest,
20
another two weeks
21
and a third
"weeks before June 25."
22
On this matter, we may prefer the declaration of the chief of the arresting
team, Lt. Cipriano Querol, Jr., who testified as follows:
Q You mentioned an intelligence report, you mean with respect to the
coming of Idel Aminnudin on June 25, 1984?
A Yes, sir.
Q When did you receive this intelligence report?
262

A Two days before June 25, 1984 and it was supported by reliable
sources.
Q Were you informed of the coming of the Wilcon 9 and the possible
trafficking of marijuana leaves on that date?
A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984 we have
already reports of the particular operation which was being participated
by Idel Aminnudin.
Q You said you received an intelligence report two days before June 25,
1984 with respect to the coming of Wilcon 9?
A Yes, sir.
Q Did you receive any other report aside from this intelligence report?
A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal gambling operation.
COURT:
Q Previous to that particular information which you said two days before
June 25, 1984, did you also receive daily report regarding the activities of
Idel Aminnudin
A Previous to June 25, 1984 we received reports on the activities of Idel
Aminnudin.
Q What were those activities?
A Purely marijuana trafficking.
Q From whom did you get that information?
A It came to my hand which was written in a required sheet of
information, maybe for security reason and we cannot Identify the
person.
Q But you received it from your regular informer?
A Yes, sir.
ATTY. LLARIZA:
Q Previous to June 25, 1984, you were more or less sure that Idel
Aminnudin is coming with drugs?
A Marijuana, sir.
263

Q And this information respecting Idel Aminnudin's coming to Iloilo with
marijuana was received by you many days before you received the
intelligence report in writing?
A Not a report of the particular coming of Aminnudin but his activities.
Q You only knew that he was coming on June 25,1984 two days before?
A Yes, sir.
Q You mean that before June 23, 1984 you did not know that minnudin
was coming?
A Before June 23,1984, I, in my capacity, did not know that he was
coming but on June 23, 1984 that was the time when I received the
information that he was coming. Regarding the reports on his activities,
we have reports that he was already consummated the act of selling and
shipping marijuana stuff.
COURT:
Q And as a result of that report, you put him under surveillance?
A Yes, sir.
Q In the intelligence report, only the name of Idel Aminnudin was
mentioned?
A Yes, sir.
Q Are you sure of that?
A On the 23rd he will be coming with the woman.
Q So that even before you received the official report on June 23, 1984,
you had already gathered information to the effect that Idel Aminnudin
was coming to Iloilo on June 25, 1984?
A Only on the 23rd of June.
Q You did not try to secure a search warrant for the seizure or search of
the subject mentioned in your intelligence report?
A No, more.
Q Why not?
A Because we were very very sure that our operation will yield positive
result.
Q Is that your procedure that whenever it will yield positive result you do
not need a search warrant anymore?
264

A Search warrant is not necessary.
23

That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC.
The Supreme Court cannot countenance such a statement. This is still a government of laws and not of
men.
The mandate of the Bill of Rights is clear:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal
determination by him of the existence of probable cause. Contrary to the averments of the government,
the accused-appellant was not caught in flagrante nor was a crime about to be committed or had just
been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even
expediency could not be invoked to dispense with the obtention of the warrant as in the case of Roldan
v. Arca,
24
for example. Here it was held that vessels and aircraft are subject to warrantless searches
and seizures for violation of the customs law because these vehicles may be quickly moved out of the
locality or jurisdiction before the warrant can be secured.
The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is
clear that they had at least two days within which they could have obtained a warrant to arrest and
search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was
Identified. The date of its arrival was certain. And from the information they had received, they could
have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet
they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether
because the PC lieutenant who was the head of the arresting team, had determined on his own authority
that a "search warrant was not necessary."
In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous
Drugs Act, it has always been shown that they were caught red-handed, as a result of what are
popularly called "buy-bust" operations of the narcotics agents.
25
Rule 113 was clearly applicable
because at the precise time of arrest the accused was in the act of selling the prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor
was it shown that he was about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his
arrest. To all appearances, he was like any of the other passengers innocently disembarking from the
vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly
became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The
Identification by the informer was the probable cause as determined by the officers (and not a judge)
that authorized them to pounce upon Aminnudin and immediately arrest him.
Now that we have succeeded in restoring democracy in our country after fourteen years of the despised
dictatorship, when any one could be picked up at will, detained without charges and punished without
trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more
flaunt its disdain of the Constitution and the individual liberties its Bill of Rights guarantees.
While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest
that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional presumption
265

is that he is innocent, and he will be so declared even if his defense is weak as long as the prosecution
is not strong enough to convict him.
Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution
must fall. That evidence cannot be admitted, and should never have been considered by the trial court
for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree, to use
Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because there was
no warrant of arrest and the warrantless arrest did not come under the exceptions allowed by the Rules
of Court. Hence, the warrantless search was also illegal and the evidence obtained thereby was
inadmissible.
The Court strongly supports the campaign of the government against drug addiction and commends the
efforts of our law-enforcement officers against those who would inflict this malediction upon our people,
especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than
the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm,
including the basest of criminals. The Constitution covers with the mantle of its protection the innocent
and the guilty alike against any manner of high- handedness from the authorities, however praiseworthy
their intentions.
Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in
the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think
it a less evil that some criminals should escape than that the government should play an ignoble part." It
is simply not allowed in the free society to violate a law to enforce another, especially if the law violated
is the Constitution itself.
We find that with the exclusion of the illegally seized marijuana as evidence against the accused-
appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be discharged
on the presumption that he is innocent.
ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is
ACQUITTED. It is so ordered.
Narvasa, Gancayco and Medialdea, JJ., concur.










266






Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 91107 June 19, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MIKAEL MALMSTEDT, *defendant-appellant.
The Solicitor General for plaintiff-appellee.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant.
PADILLA, J .:p
In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to as
the accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 10, in
Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as amended,
otherwise known as the Dangerous Drugs Act of 1972, as amended. The factual background of the case
is as follows:
Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in December
1988 as a tourist. He had visited the country sometime in 1982 and 1985.
In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of the
following day, he took a bus to Sagada and stayed in that place for two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in
Sagada to catch the first available trip to Baguio City. From Baguio City, accused planned to take a late
afternoon trip to Angeles City, then proceed to Manila to catch his flight out of the country, scheduled on
13 May 1989. From Sagada, accused took a Skyline bus with body number 8005 and Plate number AVC
902.
1

At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the
Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa, ordered
his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the
purpose of checking all vehicles coming from the Cordillera Region. The order to establish a checkpoint
in the said area was prompted by persistent reports that vehicles coming from Sagada were transporting
marijuana and other prohibited drugs. Moreover, information was received by the Commanding Officer
of NARCOM, that same morning, that a Caucasian coming from Sagada had in his possession
prohibited drugs.
2

267

The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set up a
checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all vehicles
coming from the Cordillera Region.
At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider and
CIC Galutan boarded the bus and announced that they were members of the NARCOM and that they
would conduct an inspection. The two (2) NARCOM officers started their inspection from the front going
towards the rear of the bus. Accused who was the sole foreigner riding the bus was seated at the rear
thereof.
During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on
accused's waist to be a gun, the officer asked for accused's passport and other identification papers.
When accused failed to comply, the officer required him to bring out whatever it was that was bulging on
his waist. The bulging object turned out to be a pouch bag and when accused opened the same bag, as
ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown packing tape,
prompting the officer to open one of the wrapped objects. The wrapped objects turned out to contain
hashish, a derivative of marijuana.
Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus,
accused stopped to get two (2) travelling bags from the luggage carrier.
Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in
each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same which did
not feel like foam stuffing. It was only after the officers had opened the bags that accused finally
presented his passport.
Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet
for further investigation. At the investigation room, the officers opened the teddy bears and they were
found to also contain hashish. Representative samples were taken from the hashish found among the
personal effects of accused and the same were brought to the PC Crime Laboratory for chemical
analysis.
In the chemistry report, it was established that the objects examined were hashish. a prohibited drug
which is a derivative of marijuana. Thus, an information was filed against accused for violation of the
Dangerous Drugs Act.
During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue of
illegal search of his personal effects. He also claimed that the hashish was planted by the NARCOM
officers in his pouch bag and that the two (2) travelling bags were not owned by him, but were merely
entrusted to him by an Australian couple whom he met in Sagada. He further claimed that the Australian
couple intended to take the same bus with him but because there were no more seats available in said
bus, they decided to take the next ride and asked accused to take charge of the bags, and that they
would meet each other at the Dangwa Station.
Likewise, accused alleged that when the NARCOM officers demanded for his passport and other
Identification papers, he handed to one of the officers his pouch bag which was hanging on his neck
containing, among others, his passport, return ticket to Sweden and other papers. The officer in turn
handed it to his companion who brought the bag outside the bus. When said officer came back, he
charged the accused that there was hashish in the bag. He was told to get off the bus and his picture
was taken with the pouch bag placed around his neck. The trial court did not give credence to accused's
defense.
The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his
failure to raise such defense at the earliest opportunity. When accused was investigated at the Provincial
268

Fiscal's Office, he did not inform the Fiscal or his lawyer that the hashish was planted by the NARCOM
officers in his bag. It was only two (2) months after said investigation when he told his lawyer about said
claim, denying ownership of the two (2) travelling bags as well as having hashish in his pouch bag.
In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt for
violation of the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as amended.
3
The
dispositive portion of the decision reads as follows:
WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond
reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article 11 of
Republic Act 6425, as amended, and hereby sentences him to suffer the penalty of life
imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00), with subsidiary
imprisonment in case of insolvency and to pay the costs.
Let the hashish subject of this case be turned over to the First Narcotics Regional Unit at
Camp Bado; Dangwa, La Trinidad Benguet for proper disposition under Section 20,
Article IV of Republic Act 6425, as amended.
SO ORDERED.
4

Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused
argues that the search of his personal effects was illegal because it was made without a search warrant
and, therefore, the prohibited drugs which were discovered during the illegal search are not admissible
as evidence against him.
The Constitution guarantees the right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures.
5
However, where the search is made pursuant to a
lawful arrest, there is no need to obtain a search warrant. A lawful arrest without a warrant may be made
by a peace officer or a private person under the following circumstances.
6

Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7. (6a 17a).
Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was actually
being committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his
personal effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a
warrantless search incident to a lawful arrest.
7

269

While it is true that the NARCOM officers were not armed with a search warrant when the search was
made over the personal effects of accused, however, under the circumstances of the case, there was
sufficient probable cause for said officers to believe that accused was then and there committing a
crime.
Probable cause has been defined as such facts and circumstances which could lead a reasonable,
discreet and prudent man to believe that an offense has been committed, and that the objects sought in
connection with the offense are in the place sought to be searched.
8
The required probable cause that
will justify a warrantless search and seizure is not determined by any fixed formula but is resolved
according to the facts of each case.
9

Warrantless search of the personal effects of an accused has been declared by this Court as valid,
because of existence of probable cause, where the smell of marijuana emanated from a plastic bag
owned by the accused,
10
or where the accused was acting suspiciously,
11
and attempted to flee.
12

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs, their Commanding Officer also received information
that a Caucasian coming from Sagada on that particular day had prohibited drugs in his possession.
Said information was received by the Commanding Officer of NARCOM the very same morning that
accused came down by bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few hours before the apprehension of herein accused, that
a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no
time to obtain a search warrant. In the Tangliben case,
13
the police authorities conducted a surveillance
at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga, against persons
engaged in the traffic of dangerous drugs, based on information supplied by some informers. Accused
Tangliben who was acting suspiciously and pointed out by an informer was apprehended and searched
by the police authorities. It was held that when faced with on-the-spot information, the police officers had
to act quickly and there was no time to secure a search warrant.
It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus
(where accused was riding) and the passengers therein, and no extensive search was initially made. It
was only when one of the officers noticed a bulge on the waist of accused, during the course of the
inspection, that accused was required to present his passport. The failure of accused to present his
identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that
accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing
to hide from the authorities, to readily present his identification papers when required to do so?
The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in
his possession, plus the suspicious failure of the accused to produce his passport, taken together as a
whole, led the NARCOM officers to reasonably believe that the accused was trying to hide something
illegal from the authorities. From these circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of the accused. In other words, the acts of the
NARCOM officers in requiring the accused to open his pouch bag and in opening one of the wrapped
objects found inside said bag (which was discovered to contain hashish) as well as the two (2) travelling
bags containing two (2) teddy bears with hashish stuffed inside them, were prompted by accused's own
attempt to hide his identity by refusing to present his passport, and by the information received by the
NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the
NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant,
in the light of such circumstances, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.
WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is hereby
AFFIRMED. Costs against the accused-appellant.
270

SO ORDERED.
Melencio-Herrera, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.
Sarmiento, J., is on leave.

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 120431 April 1, 1998
RODOLFO ESPANO, accused-petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
ROMERO, J .:
This is a petition for review of the decision of the Court of Appeals in CA-G.R. CR No. 13976 dated
January 16, 1995,
1
which affirmed in toto the judgment of the Regional Trial Court of Manila, Branch 1,
convincing petitioner Rodolfo Espano for violation of Article II, Section 8 of Republic Act No. 6425, as
amended, otherwise known as the Dangerous Drugs Act.
Petitioner was charged under the following information:
That on or about July 14, 1991, in the City of Manila, Philippines, the said accused not being
authorized by law to possess or use any prohibited drug, did then and there willfully, unlawfully
and knowingly have in his possession and under his custody and control twelve (12) plastic
cellophane (bags) containing crushed flowering tops, marijuana weighing 5.5 grams which is a
prohibited drug.
Contrary to law. 2
The evidence for the prosecution, based on the testimony of Pat. Romeo Pagilagan, shows that on July
14, 1991, at about 12:30 a.m., he and other police officers, namely, Pat. Wilfredo Aquino, Simplicio
Rivera, and Erlindo Lumboy of the Western Police District (WPD), Narcotics Division went to Zamora
and Pandacan Streets, Manila to confirm reports of drug pushing in the area. They saw petitioner selling
"something" to another person. After the alleged buyer left, they approached petitioner, identified
themselves as policemen, and frisked him. The search yielded two plastic cellophane tea bags of
marijuana. When asked if he had more marijuana, he replied that there was more in his house. The
policemen went to his residence where they found ten more cellophane tea bags of marijuana. Petitioner
was brought to the police headquarters where he was charged with possession of prohibited drugs. On
July 24, 1991, petitioner posted bail
3
and the trial court issued his order of release on July 29, 1991.
4

Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory Section, testified that the
articles sent to her by Pat. Wilfredo Aquino regarding the apprehension of a certain Rodolfo Espano for
examination tested positive for marijuana, with a total weight of 5.5 grams.
271

By way of defense, petitioner testified that on said evening, he was sleeping in his house and was
awakened only when the policemen handcuffed him. He alleged that the policemen were looking for his
brother-in-law Lauro, and when they could not find the latter, he was instead brought to the police station
for investigation and later indicted for possession of prohibited drugs. His wife Myrna corroborated his
story.
The trial court rejected petitioner's, defense as a "mere afterthought" and found the version of the
prosecution "more credible and trustworthy."
Thus, on August 14, 1992, the trial court rendered a decision, convicting petitioner of the crime charged,
the dispositive portion of which reads:
WHEREFORE there being proof beyond reasonable doubt, the court finds the accused Rodolfo
Espano y Valeria guilty of the crime of violation of Section 8, Article II, in relation to Section 2 (e-
L) (I) of Republic Act No. 6425 as amended by Batas Pambansa Blg. 179, and pursuant to law
hereby sentences him to suffer imprisonment of six (6) years and one (1) day to twelve (12)
years and to pay a fine of P6,000.00 with subsidiary imprisonment in case of default plus costs.
The marijuana is declared forfeited in favor of government and shall be turned over to the
Dangerous Drugs Board without delay.
SO ORDERED. 5
Petitioner appealed the decision to the Court of Appeals. The appellate court, however, affirmed the
decision of the trial court in toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred in convicting him on the basis of the
following: (a) the pieces of evidence seized were inadmissible; (b) the superiority of his constitutional
right to be presumed innocent over the doctrine of presumption of regularity, (c) he was denied the
constitutional right of confrontation and to compulsory process; and (d) his conviction was based on
evidence which was irrelevant and not properly identified.
After a careful examination of the records of the case, this Court finds no compelling reason sufficient to
reverse the decisions of the trial and appellate courts.
First, it is a well settled doctrine that findings of trial courts on the credibility of witnesses deserve a high
degree of respect. Having observed the deportment of witnesses during the trial, the trial judge is in a
better position to determine the issue of credibility and, thus, his findings will not be disturbed during
appeal in the absence of any clear showing that he had overlooked, misunderstood or misapplied some
facts or circumstances of weight and substance which could have altered the conviction of the
appellants.
6

In this case, the findings of the trial court that the prosecution witnesses were more credible than those
of the defense must stand. Petitioner failed to show that Pat. Pagilagan, in testifying against him, was
motivated by reasons other than his duty to curb drug abuse and had any intent to falsely impute to him
such a serious crime as possession of prohibited drugs. In the absence of such ill motive, the
presumption of regularity in the performance of his official duty must prevail.
In People v. Velasco,
7
this Court reiterated the doctrine of presumption of regularity in the performance of
official duty which provides:
272

. . . Appellant failed to establish that Pat. Godoy and the other members of the buy-bust team are
policemen engaged in mulcting or other unscrupulous activities who were motivated either by the
desire to extort money or exact personal vengeance, or by sheer whim and caprice, when they
entrapped her. And in the absence of proof of any intent on the part of the police authorities to
falsely impute such a serious crime against appellant, as in this case, the presumption of
regularity in the performance of official duty, . . . , must prevail over the self-serving and
uncorroborated claim of appellant that she had been framed. 8
Furthermore, the defense set up by petitioner does not deserve any consideration. He simply contended
that he was in his house sleeping at the time of the incident. This Court has consistently held that alibi is
the weakest of all defenses; and for it to prosper, the accused has the burden of proving that he was not
at the scene of the crime at the time of its commission and that it was physically impossible for him to be
there. Moreover, the "claim of a 'frame-up', like alibi, is a defense that has been invariably viewed by the
Court with disfavor for it can just as easily be concocted but difficult to prove, and is a common and
standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act."
9
No
clear and convincing evidence was presented by petitioner to prove his defense of alibi.
Second, petitioner contends that the prosecution's failure to present the alleged informant in court cast a
reasonable doubt which warrants his acquittal. This is again without merit, since failure of the
prosecution to produce the informant in court is of no moment especially when he is not even the best
witness to establish the fact that a buy-bust operation had indeed been conducted. In this case, Pat.
Pagilagan, one of the policemen who apprehended petitioner, testified on the actual incident of July 14,
1991, and identified him as the one they caught in possession of prohibited drugs. Thus,
We find that the prosecution had satisfactorily proved its case against appellants. There is no
compelling reason for us to overturn the finding of the trial court that the testimony of Sgt.
Gamboa, the lone witness for the prosecution, was straightforward spontaneous and convincing.
The testimony of a sole witness, if credible and positive and satisfies the court beyond
reasonable doubt, is sufficient to convict. 10
Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able to prove that petitioner indeed
committed the crime charged; consequently, the finding of conviction was proper.
Lastly, the issue on the admissibility of the marijuana seized should likewise be ruled upon. Rule 113
Section 5(a) of the Rules of Court provides:
A peace officer or a private person may, without a warrant, arrest a person:
a. when, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
xxx xxx xxx
Petitioner's arrest falls squarely under the aforecited rule. He was caught in flagranti as a result of a buy-
bust operation conducted by police officers on the basis of information received regarding the illegal
trade of drugs within the area of Zamora and Pandacan Streets, Manila. The police officer saw petitioner
handing over something to an alleged buyer. After the buyer left, they searched him and discovered two
cellophanes of marijuana. His arrest was, therefore, lawful and the two cellophane bags of marijuana
seized were admissible in evidence, being the fruits of the crime.
As for the ten cellophane bags of marijuana found at petitioner's residence, however, the same are
inadmissible in evidence.
273

The 1987 Constitution guarantees freedom against unreasonable searches and seizures under Article
III, Section 2 which provides:
The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
An exception to the said rule is a warrantless search incidental to a lawful arrest for dangerous weapons
or anything which may be used as proof of the commission of an offense.
11
It may extend beyond the
person of the one arrested to include the premises or surroundings under his immediate control. In this case,
the ten cellophane bags of marijuana seized at petitioner's house after his arrest at Pandacan and Zamora
Streets do not fall under the said exceptions.
In the case of People v. Lua,
12
this Court held:
As regards the brick of marijuana found inside the appellant's house, the trial court correctly
ignored it apparently in view of its inadmissibility. While initially the arrest as well as the body
search was lawful, the warrantless search made inside the appellant's house became unlawful
since the police operatives were not armed with a search warrant. Such search cannot fall under
"search made incidental to a lawful arrest," the same being limited to body search and to that
point within reach or control of the person arrested, or that which may furnish him with the means
of committing violence or of escaping. In the case at bar, appellant was admittedly outside his
house when he was arrested. Hence, it can hardly be said that the inner portion of his house
was within his reach or control.
The articles seized from petitioner during his arrest were valid under the doctrine of search made
incidental to a lawful arrest. The warrantless search made in his house, however, which yielded ten
cellophane bags of marijuana became unlawful since the police officers were not armed with a search
warrant at the time. Moreover, it was beyond the reach and control of petitioner.
In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt of violating Article II,
Section 8, in relation to Section 2 (e-L) (I) of Republic Act No. 6425, as amended. Under the said
provision, the penalty imposed is six years and one day to twelve years and a fine ranging from six
thousand to twelve thousand pesos. With the passage of Republic Act No. 7659, which took effect on
December 31, 1993, the imposable penalty shall now depend on the quantity of drugs recovered. Under
the provisions of Republic Act No. 7629, Section 20, and as interpreted in People v. Simon
13
and People
v. Lara,
14
if the quantity of marijuana involved is less than 750 grams, the imposable penalty ranges from
prision correccional to reclusion temporal. Taking into consideration that petitioner is not a habitual
delinquent, the amendatory provision is favorable to him and the quantity of marijuana involved is less than
750 grams, the penalty imposed under Republic Act No. 7659 should be applied. There being no mitigating
nor aggravating circumstances, the imposable penalty shall be prision correccional in its medium period.
Applying the Indeterminate Sentence Law, the maximum penalty shall be taken from the medium period of
prision correccional, which is two (2) years, four (4) months and one (1) day to four (4) years and two (2)
months, while the minimum shall be taken from the penalty next lower in degree, which is one (1) month and
one (1) day to six (6) months of arresto mayor.
WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals in C.A.-G.R.
CR No. 13976 dated January 16, 1995 is AFFIRMED with the MODIFICATION that petitioner Rodolfo
Espano is sentenced to suffer an indeterminate penalty of TWO (2) months and ONE (1) day of arresto
mayor, as minimum to TWO (2) years, FOUR (4) months and ONE (1) day of prision correccional, as
maximum.
274

SO ORDERED.
Narvasa, C.J., Kapunan and Purisima, JJ., concur.



Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-27360 February 28, 1968
HON. RICARDO G. PAPA, as Chief of Police of Manila; HON. JUAN PONCE ENRILE, as
Commissioner of Customs; PEDRO PACIS, as Collector of Customs of the Port of Manila; and
MARTIN ALAGAO, as Patrolman of the Manila Police Department, petitioners,
vs.
REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding Judge of Branch 23, Court of First
Instance of Manila, respondents.
Office of the Solicitor General for petitioners.
Juan T. David for respondents.
ZALDIVAR, J .:
This is an original action for prohibition and certiorari, with preliminary injunction filed by Ricardo
Papa, Chief of Police of Manila; Juan once Enrile, Commissioner of Customs; Pedro Pacis, Collector of
Customs of the Port of Manila; and Martin Alagao, a patrolman of the Manila Police Department, against
Remedios Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of the Court of First Instance
of Manila, praying for the annulment of the order issued by respondent Judge in Civil Case No. 67496 of
the Court of First Instance of Manila under date of March 7, 1967, which authorized the release under
bond of certain goods which were seized and held by petitioners in connection with the enforcement of
the Tariff and Customs Code, but which were claimed by respondent Remedios Mago, and to prohibit
respondent Judge from further proceeding in any manner whatsoever in said Civil Case No. 67496.
Pending the determination of this case this Court issued a writ of preliminary injunction restraining the
respondent Judge from executing, enforcing and/or implementing the questioned order in Civil Case No.
67496 and from proceeding with said case.
Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police Department,
acting upon a reliable information received on November 3, 1966 to the effect that a certain shipment of
personal effects, allegedly misdeclared and undervalued, would be released the following day from the
customs zone of the port of Manila and loaded on two trucks, and upon orders of petitioner Ricardo
Papa, Chief of Police of Manila and a duly deputized agent of the Bureau of Customs, conducted
surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1 at about 4:30 in the
afternoon of November 4, 1966, elements of the counter-intelligence unit went after the trucks and
intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks consisting of nine
bales of goods, and the two trucks, were seized on instructions of the Chief of Police. Upon
investigation, a person claimed ownership of the goods and showed to the policemen a "Statement and
275

Receipts of Duties Collected in Informal Entry No. 147-5501", issued by the Bureau of Customs in the
name of a certain Bienvenido Naguit.
Claiming to have been prejudiced by the seizure and detention of the two trucks and their cargo,
Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance of Manila a petition "for
mandamus with restraining order or preliminary injunction, docketed as Civil Case No. 67496, alleging,
among others, that Remedios Mago was the owner of the goods seized, having purchased them from
the Sta. Monica Grocery in San Fernando, Pampanga; that she hired the trucks owned by Valentin
Lanopa to transport, the goods from said place to her residence at 1657 Laon Laan St., Sampaloc,
Manila; that the goods were seized by members of the Manila Police Department without search warrant
issued by a competent court; that anila Chief of Police Ricardo Papa denied the request of counsel for
Remedios Mago that the bales be not opened and the goods contained therein be not examined; that
then Customs Commissioner Jacinto Gavino had illegally assigned appraisers to examine the goods
because the goods were no longer under the control and supervision of the Commissioner of Customs;
that the goods, even assuming them to have been misdeclared and, undervalued, were not subject to
seizure under Section 2531 of the Tariff and Customs Code because Remedios Mago had bought them
from another person without knowledge that they were imported illegally; that the bales had not yet been
opened, although Chief of Police Papa had arranged with the Commissioner of Customs regarding the
disposition of the goods, and that unless restrained their constitutional rights would be violated and they
would truly suffer irreparable injury. Hence, Remedios Mago and Valentin Lanopa prayed for the
issuance of a restraining order, ex parte, enjoining the above-named police and customs authorities, or
their agents, from opening the bales and examining the goods, and a writ of mandamus for the return of
the goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their favor.
On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex parte restraining
the respondents in Civil Case No. 67496 now petitioners in the instant case before this Court from
opening the nine bales in question, and at the same time set the hearing of the petition for preliminary
injunction on November 16, 1966. However, when the restraining order was received by herein
petitioners, some bales had already been opened by the examiners of the Bureau of Customs in the
presence of officials of the Manila Police Department, an assistant city fiscal and a representative of
herein respondent Remedios Mago.
Under date of November 15, 1966, Remedios Mago filed an amended petition in Civil Case No.
67496, including as party defendants Collector of Customs Pedro Pacis of the Port of Manila and Lt.
Martin Alagao of the Manila Police Department. Herein petitioners (defendants below) filed, on
November 24, 1966, their "Answer with Opposition to the Issuance of a Writ of Preliminary Injunction",
denying the alleged illegality of the seizure and detention of the goods and the trucks and of their other
actuations, and alleging special and affirmative defenses, to wit: that the Court of First Instance of
Manila had no jurisdiction to try the case; that the case fell within the exclusive jurisdiction of the Court of
Tax Appeals; that, assuming that the court had jurisdiction over the case, the petition stated no cause of
action in view of the failure of Remedios Mago to exhaust the administrative remedies provided for in the
Tariff and Customs Code; that the Bureau of Customs had not lost jurisdiction over the goods because
the full duties and charges thereon had not been paid; that the members of the Manila Police
Department had the power to make the seizure; that the seizure was not unreasonable; and the persons
deputized under Section 2203 (c) of the Tariff and Customs Code could effect search, seizures and
arrests in inland places in connection with the enforcement of the said Code. In opposing the issuance of
the writ of preliminary injunction, herein petitioners averred in the court below that the writ could not be
granted for the reason that Remedios Mago was not entitled to the main reliefs she prayed for; that the
release of the goods, which were subject to seizure proceedings under the Tariff and Customs Code,
would deprive the Bureau of Customs of the authority to forfeit them; and that Remedios Mago and
Valentin Lanopa would not suffer irreparable injury. Herein petitioners prayed the court below for the
lifting of the restraining order, for the denial of the issuance of the writ of preliminary injunction, and for
the dismissal of the case.
276

At the hearing on December 9, 1966, the lower Court, with the conformity of the parties, ordered
that an inventory of the goods be made by its clerk of court in the presence of the representatives of the
claimant of the goods, the Bureau of Customs, and the Anti-Smuggling Center of the Manila Police
Department. On December 13, 1966, the above-named persons filed a "Compliance" itemizing the
contents of the nine bales.
Herein respondent Remedios Mago, on December 23, 1966, filed an ex parte motion to release
the goods, alleging that since the inventory of the goods seized did not show any article of prohibited
importation, the same should be released as per agreement of the patties upon her posting of the
appropriate bond that may be determined by the court. Herein petitioners filed their opposition to the
motion, alleging that the court had no jurisdiction to order the release of the goods in view of the fact that
the court had no jurisdiction over the case, and that most of the goods, as shown in the inventory, were
not declared and were, therefore, subject to forfeiture. A supplemental opposition was filed by herein
petitioners on January 19, 1967, alleging that on January 12, 1967 seizure proceedings against the
goods had been instituted by the Collector of Customs of the Port of Manila, and the determination of all
questions affecting the disposal of property proceeded against in seizure and forfeiture proceedings
should thereby be left to the Collector of Customs. On January 30, 1967, herein petitioners filed a
manifestation that the estimated duties, taxes and other charges due on the goods amounted to
P95,772.00. On February 2, 1967, herein respondent Remedios Mago filed an urgent manifestation and
reiteration of the motion for the release under bond of the goods.
On March 7, 1967, the respondent Judge issued an order releasing the goods to herein
respondent Remedios Mago upon her filing of a bond in the amount of P40,000.00, and on March 13,
1967, said respondent filed the corresponding bond.
On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a motion for
reconsideration of the order of the court releasing the goods under bond, upon the ground that the
Manila Police Department had been directed by the Collector of Customs of the Port of Manila to hold
the goods pending termination of the seizure proceedings.
Without waiting for the court's action on the motion for reconsideration, and alleging that they had
no plain, speedy and adequate remedy in the ordinary course of law, herein petitioners filed the present
action for prohibition and certiorari with preliminary injunction before this Court. In their petition
petitioners alleged, among others, that the respondent Judge acted without jurisdiction in ordering the
release to respondent Remedios Mago of the disputed goods, for the following reasons: (1) the Court of
First Instance of Manila, presided by respondent Judge, had no jurisdiction over the case; (2)
respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court of First
Instance of Manila due to her failure to exhaust all administrative remedies before invoking judicial
intervention; (3) the Government was not estopped by the negligent and/or illegal acts of its agent in not
collecting the correct taxes; and (4) the bond fixed by respondent Judge for the release of the goods was
grossly insufficient.
In due time, the respondents filed their answer to the petition for prohibition and certiorari in this
case. In their answer, respondents alleged, among others: (1) that it was within the jurisdiction of the
lower court presided by respondent Judge to hear and decide Civil Case No. 67496 and to issue the
questioned order of March 7, 1967, because said Civil Case No. 67496 was instituted long before
seizure, and identification proceedings against the nine bales of goods in question were instituted by the
Collector of Customs; (2) that petitioners could no longer go after the goods in question after the
corresponding duties and taxes had been paid and said goods had left the customs premises and were
no longer within the control of the Bureau of Customs; (3) that respondent Remedios Mago was
purchaser in good faith of the goods in question so that those goods can not be the subject of seizure
and forfeiture proceedings; (4) that the seizure of the goods was affected by members of the Manila
Police Department at a place outside control of jurisdiction of the Bureau of Customs and affected
without any search warrant or a warrant of seizure and detention; (5) that the warrant of seizure and
detention subsequently issued by the Collector of Customs is illegal and unconstitutional, it not being
277

issued by a judge; (6) that the seizing officers have no authority to seize the goods in question because
they are not articles of prohibited importation; (7) that petitioners are estopped to institute the present
action because they had agreed before the respondent Judge that they would not interpose any
objection to the release of the goods under bond to answer for whatever duties and taxes the said goods
may still be liable; and (8) that the bond for the release of the goods was sufficient.
The principal issue in the instant case is whether or not, the respondent Judge had acted with
jurisdiction in issuing the order of March 7, 1967 releasing the goods in question.
The Bureau of Customs has the duties, powers and jurisdiction, among others, (1) to assess and
collect all lawful revenues from imported articles, and all other dues, fees, charges, fines and penalties,
accruing under the tariff and customs laws; (2) to prevent and suppress smuggling and other frauds
upon the customs; and (3) to enforce tariff and customs laws.
1
The goods in question were imported
from Hongkong, as shown in the "Statement and Receipts of Duties Collected on Informal Entry".
2
As
long as the importation has not been terminated the imported goods remain under the jurisdiction of the
Bureau of customs. Importation is deemed terminated only upon the payment of the duties, taxes and
other charges upon the articles, or secured to be paid, at the port of entry and the legal permit for
withdrawal shall have been granted.
3
The payment of the duties, taxes, fees and other charges must be
in full.
4

The record shows, by comparing the articles and duties stated in the aforesaid "Statement and
Receipts of Duties Collected on Informal Entry" with the manifestation of the Office of the Solicitor
General
5
wherein it is stated that the estimated duties, taxes and other charges on the goods subject of
this case amounted to P95,772.00 as evidenced by the report of the appraiser of the Bureau of
Customs, that the duties, taxes and other charges had not been paid in full. Furthermore, a comparison
of the goods on which duties had been assessed, as shown in the "Statement and Receipts of Duties
Collected on Informal Entry" and the "compliance" itemizing the articles found in the bales upon
examination and inventory,
6
shows that the quantity of the goods was underdeclared, presumably to
avoid the payment of duties thereon. For example, Annex B (the statement and receipts of duties
collected) states that there were 40 pieces of ladies' sweaters, whereas Annex H (the inventory
contained in the "compliance") states that in bale No. 1 alone there were 42 dozens and 1 piece of
ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch bands were assessed, but in
Annex H, there were in bale No. 2, 209 dozens and 5 pieces of men's metal watch bands (white) and
120 dozens of men's metal watch band (gold color), and in bale No. 7, 320 dozens of men's metal watch
bands (gold color); in Annex B, 20 dozens only of men's handkerchief were declared, but in Annex H it
appears that there were 224 dozens of said goods in bale No. 2, 120 dozens in bale No. 6, 380 dozens
in bale No. 7, 220 dozens in bale No. 8, and another 200 dozens in bale No. 9. The articles contained in
the nine bales in question, were, therefore, subject to forfeiture under Section 2530, pars. e and m, (1),
(3), (4), and (5) of the Tariff and Customs Code. And this Court has held that merchandise, the
importation of which is effected contrary to law, is subject to forfeiture,
7
and that goods released contrary
to law are subject to seizure and forfeiture.
8

Even if it be granted, arguendo, that after the goods in question had been brought out of the
customs area the Bureau of Customs had lost jurisdiction over the same, nevertheless, when said goods
were intercepted at the Agrifina Circle on November 4, 1966 by members of the Manila Police
Department, acting under directions and orders of their Chief, Ricardo C. Papa, who had been formally
deputized by the Commissioner of Customs,
9
the Bureau of Customs had regained jurisdiction and
custody of the goods. Section 1206 of the Tariff and Customs Code imposes upon the Collector of
Customs the duty to hold possession of all imported articles upon which duties, taxes, and other charges
have not been paid or secured to be paid, and to dispose of the same according to law. The goods in
question, therefore, were under the custody and at the disposal of the Bureau of Customs at the time the
petition for mandamus, docketed as Civil Case No. 67496, was filed in the Court of First Instance of
Manila on November 9, 1966. The Court of First Instance of Manila, therefore, could not exercise
jurisdiction over said goods even if the warrant of seizure and detention of the goods for the purposes of
the seizure and forfeiture proceedings had not yet been issued by the Collector of Customs.
278

The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G.R. No. L-24037,
decided by this Court on April 27, 1967, is squarely applicable to the instant case. In the De Joya case, it
appears that Francindy Commercial of Manila bought from Ernerose Commercial of Cebu City 90 bales
of assorted textiles and rags, valued at P117,731.00, which had been imported and entered thru the port
of Cebu. Ernerose Commercial shipped the goods to Manila on board an inter-island vessel. When the
goods where about to leave the customs premises in Manila, on October 6, 1964, the customs
authorities held them for further verification, and upon examination the goods were found to be different
from the declaration in the cargo manifest of the carrying vessel. Francindy Commercial subsequently
demanded from the customs authorities the release of the goods, asserting that it is a purchaser in good
faith of those goods; that a local purchaser was involved so the Bureau of Customs had no right to
examine the goods; and that the goods came from a coastwise port. On October 26, 1964, Francindy
Commercial filed in the Court of First Instance of Manila a petition for mandamus against the
Commissioner of Customs and the Collector of Customs of the port of Manila to compel said customs
authorities to release the goods.
Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had no
jurisdiction over the goods because the same were not imported to the port of Manila; that it was not
liable for duties and taxes because the transaction was not an original importation; that the goods were
not in the hands of the importer nor subject to importer's control, nor were the goods imported contrary
to law with its (Francindy Commercial's) knowledge; and that the importation had been terminated. On
November 12, 1964, the Collector of Customs of Manila issued a warrant of seizure and identification
against the goods. On December 3, 1964, the Commissioner of Customs and the Collector of Customs,
as respondents in the mandamus case, filed a motion to dismiss the petition on the grounds of lack of
jurisdiction, lack of cause of action, and in view of the pending seizure and forfeiture proceedings. The
Court of First Instance held resolution on the motion to dismiss in abeyance pending decision on the
merits. On December 14, 1964, the Court of First Instance of Manila issued a preventive and mandatory
injunction, on prayer by Francindy Commercial, upon a bond of P20,000.00. The Commissioner of
Customs and the Collector of Customs sought the lifting of the preliminary and mandatory injunction,
and the resolution of their motion to dismiss. The Court of First Instance of Manila, however, on January
12, 1965, ordered them to comply with the preliminary and mandatory injunction, upon the filing by
Francindy Commercial of an additional bond of P50,000.00. Said customs authorities thereupon filed
with this Court, on January 14, 1965, a petition for certiorari and prohibition with preliminary injunction. In
resolving the question raised in that case, this Court held:
This petition raises two related issues: first, has the Customs bureau jurisdiction to seize
the goods and institute forfeiture proceedings against them? and (2) has the Court of First
Instance jurisdiction to entertain the petition for mandamus to compel the Customs authorities to
release the goods?
Francindy Commercial contends that since the petition in the Court of first Instance was
filed (on October 26, 1964) ahead of the issuance of the Customs warrant of seizure and
forfeiture (on November 12, 1964),the Customs bureau should yield the jurisdiction of the said
court.
The record shows, however, that the goods in question were actually seized on October 6,
1964, i.e., before Francindy Commercial sued in court. The purpose of the seizure by the
Customs bureau was to verify whether or not Custom duties and taxes were paid for their
importation. Hence, on December 23, 1964, Customs released 22 bales thereof, for the same
were found to have been released regularly from the Cebu Port (Petition Annex "L"). As to goods
imported illegally or released irregularly from Customs custody, these are subject to seizure
under Section 2530 m. of the Tariff and Customs Code (RA 1957).
The Bureau of Customs has jurisdiction and power, among others to collect revenues from
imported articles, fines and penalties and suppress smuggling and other frauds on customs; and
to enforce tariff and customs laws (Sec. 602, Republic Act 1957).
279

The goods in question are imported articles entered at the Port of Cebu. Should they be
found to have been released irregularly from Customs custody in Cebu City, they are subject to
seizure and forfeiture, the proceedings for which comes within the jurisdiction of the Bureau of
Customs pursuant to Republic Act 1937.
Said proceeding should be followed; the owner of the goods may set up defenses therein
(Pacis v. Averia, L-22526, Nov. 20, 1966.) From the decision of the Commissioner of Customs
appeal lies to the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act 1937 and Sec.
11 of Republic Act, 1125. To permit recourse to the Court of First Instance in cases of seizure of
imported goods would in effect render ineffective the power of the Customs authorities under the
Tariff and Customs Code and deprive the Court of Tax Appeals of one of its exclusive appellate
jurisdictions. As this Court has ruled in Pacis v. Averia, supra, Republic Acts 1937 and 1125 vest
jurisdiction over seizure and forfeiture proceedings exclusively upon the Bureau of Customs and
the Court of Tax Appeals. Such law being special in nature, while the Judiciary Act defining the
jurisdiction of Courts of First Instance is a general legislation, not to mention that the former are
later enactments, the Court of First Instance should yield to the jurisdiction of the Customs
authorities.
It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over
imported goods, for the purposes of enforcement of the customs laws, from the moment the goods are
actually in its possession or control, even if no warrant of seizure or detention had previously been
issued by the Collector of Customs in connection with seizure and forfeiture proceedings. In the present
case, the Bureau of Customs actually seized the goods in question on November 4, 1966, and so from
that date the Bureau of Customs acquired jurisdiction over the goods for the purposes of the
enforcement of the tariff and customs laws, to the exclusion of the regular courts. Much less then would
the Court of First Instance of Manila have jurisdiction over the goods in question after the Collector of
Customs had issued the warrant of seizure and detention on January 12, 1967.
10
And so, it cannot be
said, as respondents contend, that the issuance of said warrant was only an attempt to divest the
respondent Judge of jurisdiction over the subject matter of the case. The court presided by respondent
Judge did not acquire jurisdiction over the goods in question when the petition for mandamus was filed
before it, and so there was no need of divesting it of jurisdiction. Not having acquired jurisdiction over the
goods, it follows that the Court of First Instance of Manila had no jurisdiction to issue the questioned
order of March 7, 1967 releasing said goods.
Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police Department,
could not seize the goods in question without a search warrant. This contention cannot be sustained.
The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized in writing by the
Commissioner of Customs, could, for the purposes of the enforcement of the customs and tariff laws,
effect searches, seizures, and arrests,
11
and it was his duty to make seizure, among others, of any
cargo, articles or other movable property when the same may be subject to forfeiture or liable for any
fine imposed under customs and tariff laws.
12
He could lawfully open and examine any box, trunk,
envelope or other container wherever found when he had reasonable cause to suspect the presence
therein of dutiable articles introduced into the Philippines contrary to law; and likewise to stop, search
and examine any vehicle, beast or person reasonably suspected of holding or conveying such article as
aforesaid.
13
It cannot be doubted, therefore, that petitioner Ricardo G. Papa, Chief of Police of Manila,
could lawfully effect the search and seizure of the goods in question. The Tariff and Customs Code
authorizes him to demand assistance of any police officer to effect said search and seizure, and the
latter has the legal duty to render said assistance.
14
This was what happened precisely in the case of Lt.
Martin Alagao who, with his unit, made the search and seizure of the two trucks loaded with the nine
bales of goods in question at the Agrifina Circle. He was given authority by the Chief of Police to make
the interception of the cargo.
15

Petitioner Martin Alagao and his companion policemen had authority to effect the seizure without
any search warrant issued by a competent court. The Tariff and Customs Code does not require said
warrant in the instant case. The Code authorizes persons having police authority under Section 2203 of
280

the Tariff and Customs Code to enter, pass through or search any land, inclosure, warehouse, store or
building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and
any trunk, package, or envelope or any person on board, or to stop and search and examine any
vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced
into the Philippines contrary to law, without mentioning the need of a search warrant in said cases.
16
But
in the search of a dwelling house, the Code provides that said "dwelling house may be entered and
searched only upon warrant issued by a judge or justice of the peace. . . ."
17
It is our considered view,
therefor, that except in the case of the search of a dwelling house, persons exercising police authority
under the customs law may effect search and seizure without a search warrant in the enforcement of
customs laws.
Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799, wherein
the court, considering a legal provision similar to Section 2211 of the Philippine Tariff and Customs
Code, said as follows:
Thus contemporaneously with the adoption of the 4th Amendment, we find in the first
Congress, and in the following second and fourth Congresses, a difference made as to the
necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling
house of similar place, and like goods in course of transportation and concealed in a movable
vessel, where readily they could be put out of reach of a search warrant. . . .
Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.231, 232, chap. 94), it
was made lawful for customs officers not only to board and search vessels within their own and
adjoining districts, but also to stop, search and examine any vehicle, beast or person on which or
whom they should suspect there was merchandise which was subject to duty, or had been
introduced into the United States in any manner contrary to law, whether by the person in charge
of the vehicle or beast or otherwise, and if they should find any goods, wares, or merchandise
thereon, which they had probably cause to believe had been so unlawfully brought into the
country, to seize and secure the same, and the vehicle or beast as well, for trial and forfeiture.
This Act was renewed April 27, 1816 (3 Sta. at L. 315, chap. 100), for a year and expired. The
Act of February 28, 1865, revived 2 of the Act of 1815, above described, chap. 67, 13 Stat. at
L. 441. The substance of this section was re-enacted in the 3d section of the Act of July 18,
1866, chap. 201, 14 Stat. at L. 178, and was thereafter embodied in the Revised Statutes as
3061, Comp. Stat. 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161. Neither 3061 nor any of its
earlier counterparts has ever been attacked as unconstitutional. Indeed, that section was
referred to and treated as operative by this court in Von Cotzhausen v. Nazro, 107 U.S. 215,
219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503. . . .
In the instant case, we note that petitioner Martin Alagao and his companion policemen did not
have to make any search before they seized the two trucks and their cargo. In their original petition, and
amended petition, in the court below Remedios Mago and Valentin Lanopa did not even allege that there
was a search.
18
All that they complained of was,
That while the trucks were on their way, they were intercepted without any search warrant
near the Agrifina Circle and taken to the Manila Police Department, where they were detained.
But even if there was a search, there is still authority to the effect that no search warrant would be
needed under the circumstances obtaining in the instant case. Thus, it has been held that:
The guaranty of freedom from unreasonable searches and seizures is construed as
recognizing a necessary difference between a search of a dwelling house or other structure in
respect of which a search warrant may readily be obtained and a search of a ship, motorboat,
wagon, or automobile for contraband goods, where it is not practicable to secure a warrant
because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant
must be sought. (47 Am. Jur., pp. 513-514, citing Carroll v. United States, 267 U.S. 132, 69 L.
281

ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v. Case, 320 Mich., 379, 190 N.W., 389, 27
A.L.R., 686.)
In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question raised
by defendant's counsel was whether an automobile truck or an automobile could be searched without
search warrant or other process and the goods therein seized used afterwards as evidence in a trial for
violation of the prohibition laws of the State. Same counsel contended the negative, urging the
constitutional provision forbidding unreasonable searches and seizures. The Court said:
. . . Neither our state nor the Federal Constitution directly prohibits search and seizure
without a warrant, as is sometimes asserted. Only "unreasonable" search and seizure is
forbidden. . . .
. . . The question whether a seizure or a search is unreasonable in the language of the
Constitution is a judicial and not a legislative question; but in determining whether a seizure is or
is not unreasonable, all of the circumstances under which it is made must be looked to.
The automobile is a swift and powerful vehicle of recent development, which has multiplied
by quantity production and taken possession of our highways in battalions until the slower,
animal-drawn vehicles, with their easily noted individuality, are rare. Constructed as covered
vehicles to standard form in immense quantities, and with a capacity for speed rivaling express
trains, they furnish for successful commission of crime a disguising means of silent approach
and swift escape unknown in the history of the world before their advent. The question of their
police control and reasonable search on highways or other public places is a serious question far
deeper and broader than their use in so-called "bootleging" or "rum running," which is itself is no
small matter. While a possession in the sense of private ownership, they are but a vehicle
constructed for travel and transportation on highways. Their active use is not in homes or on
private premises, the privacy of which the law especially guards from search and seizure without
process. The baffling extent to which they are successfully utilized to facilitate commission of
crime of all degrees, from those against morality, chastity, and decency, to robbery, rape,
burglary, and murder, is a matter of common knowledge. Upon that problem a condition, and not
a theory, confronts proper administration of our criminal laws. Whether search of and seizure
from an automobile upon a highway or other public place without a search warrant is
unreasonable is in its final analysis to be determined as a judicial question in view of all the
circumstances under which it is made.
Having declared that the seizure by the members of the Manila Police Department of the goods in
question was in accordance with law and by that seizure the Bureau of Customs had acquired
jurisdiction over the goods for the purpose of the enforcement of the customs and tariff laws, to the
exclusion of the Court of First Instance of Manila, We have thus resolved the principal and decisive issue
in the present case. We do not consider it necessary, for the purposes of this decision, to discuss the
incidental issues raised by the parties in their pleadings.
WHEREFORE, judgment is hereby rendered, as follows:
(a) Granting the writ of certiorari and prohibition prayed for by petitioners;
(b) Declaring null and void, for having been issued without jurisdiction, the order of respondent
Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Code No. 67496 of the Court of First Instance
of Manila;
(c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967
restraining respondent Judge from executing, enforcing and/or implementing his order of March 7, 1967
282

in Civil Case No. 67496 of the Court of First Instance of Manila, and from proceeding in any manner in
said case;
(d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila; and1wph 1. t
(e) Ordering the private respondent, Remedios Mago, to pay the costs.
It is so ordered.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 96177 January 27, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARI MUSA y HANTATALU, accused-appellant.
The Solicitor General for plaintiff-appellee.
Pablo L. Murillo for accused-appellant.
ROMERO, J .:
The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31, 1990,
1
of
the Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling marijuana in
violation of Article II, Section 4 of Republic Act No. 6425, as amended, otherwise known as the
Dangerous Drugs Act of 1972.
The information filed on December 15, 1989 against the appellant reads:
That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within
the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there, wilfully,
unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing
dried marijuana leaves, knowing the same to be a prohibited drug.
CONTRARY TO LAW.
2

Upon his arraignment on January 11, 1990, the appellant pleaded not guilty.
3

At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th
Narcotics Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust
operation made against the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of
Zamboanga City, who was the NARCOM team leader of the buy-bust operation; and (3) Athena Elisa P.
Anderson, the Document Examiner and Forensic Chemist of PC-INP Crime Laboratory of Regional
Command (RECOM) 9. The evidence of the prosecution was summarized by the trial court as follows:
Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus
Belarga, leader of a NARCOTICS COMMAND (NARCOM) team based at Calarian,
Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and test buy on a
283

certain Mari Musa of Suterville, Zamboanga City. Information received from civilian
informer was that this Mari Musa was engaged in selling marijuana in said place. So Sgt.
Amado Ani, another NARCOM agent, proceeded to Suterville, in company with a
NARCOM civilian informer, to the house of Mari Musa to which house the civilian
informer had guided him. The same civilian informer had also described to him the
appearance of Mari Musa. Amado Ani was able to buy one newspaper-wrapped dried
marijuana (Exh. "E") for P10.00. Sgt. Ani returned to the NARCOM office and turned over
the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga inspected the
stuff turned over to him and found it to be marijuana.
The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt.
Amado Ani was assigned as the poseur buyer for which purpose he was given P20.00
(with SN GA955883) by Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun,
Chief of Investigation Section, and for which Belarga signed a receipt (Exh. "L" & "L-l" )
The team under Sgt. Foncargas was assigned as back-up security. A pre-arranged
signal was arranged consisting of Sgt. Ani's raising his right hand, after he had
succeeded to buy the marijuana. The two NARCOM teams proceeded to the target site
in two civilian vehicles. Belarga's team was composed of Sgt. Belarga, team leader, Sgt.
Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.
Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of
the NARCOM group positioned themselves at strategic places about 90 to 100 meters
from Mari Musa's house. T/Sgt. Belarga could see what went on between Ani and
suspect Mari Musa from where he was. Ani approached Mari Musa, who came out of his
house, and asked Ani what he wanted. Ani said he wanted some more stuff. Ani gave
Mari Musa the P20.00 marked money. After receiving the money, Mari Musa went back
to his house and came back and gave Amado Ani two newspaper wrappers containing
dried marijuana. Ani opened the two wrappers and inspected the contents. Convinced
that the contents were marijuana, Ani walked back towards his companions and raised
his right hand. The two NARCOM teams, riding the two civilian vehicles, sped towards
Sgt. Ani. Ani joined Belarga's team and returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four persons inside his
house: Mari Musa, another boy, and two women, one of whom Ani and Belarga later
came to know to be Mari Musa's wife. The second time, Ani with the NARCOM team
returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife,
slipped away from the house. Sgt. Belarga frisked Mari Musa but could not find the
P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and
he told the NARCOM team he has given the money to his wife (who had slipped away).
Sgt. Belarga also found a plastic bag containing dried marijuana inside it somewhere in
the kitchen. Mari Musa was then placed under arrest and brought to the NARCOM office.
At Suterville, Sgt. Ani turned over to Sgt. Belarga the two newspaper-wrapped marijuana
he had earlier bought from Mari Musa (Exhs. "C" & "D").
In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari
Musa gave his true name Mari Musa. T/Sgt. Jesus Belarga turned over the two
newspaper-wrapped marijuana (bought at the buy-bust), the one newspaper-wrapped
marijuana (bought at the test-buy) and the plastic bag containing more marijuana (which
had been taken by Sgt. Lego inside the kitchen of Mari Musa) to the PC Crime
Laboratory, Zamboanga City, for laboratory examination. The turnover of the marijuana
specimen to the PC Crime Laboratory was by way of a letter-request, dated December
14, 1989 (Exh. "B"), which was stamped "RECEIVED" by the PC Crime Laboratory (Exh.
"B-1") on the same day.
284

Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory,
examined the marijuana specimens subjecting the same to her three tests. All submitted
specimens she examined gave positive results for the presence of marijuana. Mrs.
Anderson reported the results of her examination in her Chemistry Report D-100-89,
dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-3", "J-4" and "J-5"). Mrs. Anderson
identified in court the two newspaper wrapped marijuana bought at the
buy-bust on December 14, 1989, through her initial and the weight of each specimen
written with red ink on each wrapper (Exhs. "C-1" and "D-1"). She also identified the one
newspaper-wrapped marijuana bought at the test-buy on December 13, 1989, through
her markings (Exh. "E-1"). Mrs. Anderson also identified her Chemistry Report (Exh. "J"
& sub-markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his
initial, the words "buy-bust" and the words "December 14, 1989, 2:45 P.M." (written on
Exhs. "C" and "D"). Belarga also identified the receipt of the P20 marked money (with SN
GA955883) (Exh. "L"), dated December 14, 1989, and his signature thereon (Exh.
"L-1"). He also identified the letter-request, dated December 14, 1989, addressed to the
PC Crime Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the stamp of
the PC Crime Laboratory marked "RECEIVED" (Exh. "B-1").
4

For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2)
Ahara R. Musa, his wife. The trial court summarized the version of the defense, thus:
[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at
Suterville, Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his one-
year old child, a woman manicurist, and a male cousin named Abdul Musa. About 1:30
that afternoon, while he was being manicured at one hand, his wife was inside the one
room of their house, putting their child to sleep. Three NARCOM agents, who introduced
themselves as NARCOM agents, dressed in civilian clothes, got inside Mari Musa's
house whose door was open. The NARCOM agents did not ask permission to enter the
house but simply announced that they were NARCOM agents. The NARCOM agents
searched Mari Musa's house and Mari Musa asked them if they had a search warrant.
The NARCOM agents were just silent. The NARCOM agents found a red plastic bag
whose contents, Mari Musa said, he did not know. He also did not know if the plastic bag
belonged to his brother, Faisal, who was living with him, or his father, who was living in
another house about ten arms-length away. Mari Musa, then, was handcuffed and when
Mari Musa asked why, the NARCOM agents told him for clarification.
Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at
Calarian, Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated by
one NARCOM agent which investigation was reduced into writing. The writing or
document was interpreted to Mari Musa in Tagalog. The document stated that the
marijuana belonged to Mari Musa and Mari Musa was asked to sign it. But Mari Musa
refused to sign because the marijuana did not belong to him. Mari Musa said he was not
told that he was entitled to the assistance of counsel, although he himself told the
NARCOM agents he wanted to be assisted by counsel.
Mari Musa said four bullets were then placed between the fingers of his right hand and
his fingers were pressed which felt very painful. The NARCOM agents boxed him and
Mari Musa lost consciousness. While Mari Musa was maltreated, he said his wife was
outside the NARCOM building. The very day he was arrested (on cross-examination Mari
Musa said it was on the next day), Mari Musa was brought to the Fiscal's Office by three
NARCOM agents. The fiscal asked him if the marijuana was owned by him and he said
"not." After that single question, Mari Musa was brought to the City Jail. Mari Musa said
285

he did not tell the fiscal that he had been maltreated by the NARCOM agents because he
was afraid he might be maltreated in the fiscal's office.
Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of
marijuana to them; that he had received from them a P20.00 bill which he had given to
his wife. He did not sell marijuana because he was afraid that was against the law and
that the person selling marijuana was caught by the authorities; and he had a wife and a
very small child to support. Mari Musa said he had not been arrested for selling
marijuana before.
5

After trial, the trial court rendered the assailed decision with the following disposition:
WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable doubt
of selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is sentenced
to life imprisonment and to pay the fine of P20,000.00, the latter imposed without
subsidiary imprisonment.
6

In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and
impugns the credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior
to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the
appellant or vice-versa; and (2) there was no witness to the alleged giving of the two wrappers of
marijuana by the appellant to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted a
test-buy operation on the appellant whereby he bought one wrapper of marijuana for P15.00 from the
latter.
7
He reported the successful operation to T/Sgt. Belarga on the same day.
8
Whereupon, T/Sgt.
Belarga conducted a conference to organize a buy-bust operation for the following day.
9

On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt.
Belarga and a certain Sgt. Foncardas went to the place of operation, which was the appellant's house
located in Laquian Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga,
whose other members were Sgts. Lego and Biong.
10
Sgt. Ani was given a marked P20.00 bill by T/Sgt.
Belarga, which was to be used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at strategic places.
11
Sgt. Ani
approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked
him for some more marijuana.
12
Sgt. Ani gave him the marked P20.00 bill and the appellant went inside
the house and brought back two paper wrappers containing marijuana which he handed to Sgt. Ani.
13

From his position, Sgt. Ani could see that there were other people in the house.
14

After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal
of raising his right hand.
15
The NARCOM agents, accompanied by Sgt. Ani, went inside the house and
made the arrest. The agents searched the appellant and unable to find the marked money, they asked
him where it was. The appellant said that he gave it to his wife.
16

The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust
operation, which resulted in the apprehension, prosecution and subsequent conviction of the appellant,
to be direct, lucid and forthright. Being totally untainted by contradictions in any of the material points, it
deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani because they do not know
each other is without merit. The day before the
286

buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana
from the appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's
confidence for the latter to sell more marijuana to Sgt. Ani the following day, during the buy-bust
operation. Moreover, the Court has held that what matters is not an existing familiarity between the
buyer and the seller, for quite often, the parties to the transaction may be strangers, but their agreement
and the acts constituting the sale and delivery of the marijuana.
17

The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the
appellant to sell marijuana while his wife, cousin and manicurist were present. But the place of the
commission of the crime of selling prohibited drugs has been held to be not crucial
18
and the presence of
other people apart from the buyer and seller will not necessarily prevent the consummation of the illegal
sale. As the Court observed in People v. Paco,
19
these factors may sometimes camouflage the
commission of the crime. In the instant case, the fact that the other people inside the appellant's house
are known to the appellant may have given him some assurance that these people will not report him to
the authorities.
The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga. The
appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani
and the appellant, he could not have possibly witnessed the sale. The appellant invokes People v.
Ale
20
where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish
between marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks. And
since T/Sgt. Belarga allegedly did not see the sale, the appellant contends that the uncorroborated
testimony of Sgt. Ani can not stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified that he and his
companion were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer
based on the appearance of the cigarette sticks. The Court rejected this claim, stating that:
This Court cannot give full credit to the testimonies of the prosecution witnesses marked
as they are with contradictions and tainted with inaccuracies.
Bian testified that they were able to tell that the four cigarettes were marijuana
cigarettes because according to him, the rolling of ordinary cigarettes are different from
those of marijuana cigarettes. (tsn, November 13, 1984, p. 10).
It is however, incredible to believe that they could discern the type of rolling done on
those cigarettes from the distance where they were observing the alleged sale of more or
less 10 to 15 meters.
21

In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over
marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between the two.
The relevant portion of T/Sgt. Belarga's testimony reads:
22

Q Now, do you remember whether Sgt. Ani was able to reach the house
of Mari Musa?
A Yes, ma'am.
Q After reaching Mari Musa, did you see what happened (sic)?
A Yes, ma'am.
Q Could you please tell us?
287

A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt.
Biong were boarded, I saw that Sgt. Ani proceeded to the house near the
road and he was met by one person and later known as Mari Musa who
was at the time wearing short pants and later on I saw that Sgt. Ani
handed something to him, thereafter received by Mari Musa and went
inside the house and came back later and handed something to Sgt. Ani.
Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a
distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the
former "something."
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received
from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the
direct evidence, which the Court earlier ruled to be convincing, presented by Sgt. Ani on the following
material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-buy operation on
the appellant at Suterville, Zamboanga City on December 13, 1989;
23
(2) later that same day, Sgt. Ani
went back to their office and reported a successful operation and turned over to T/Sgt. Belarga one
wrapper of marijuana;
24
(3) T/Sgt. Belarga then organized a team to conduct a buy-bust operation the
following day;
25
(4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to
Suterville, Zamboanga City;
26
(5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be
used in the buy-bust operation;
27
(6) upon the arrival of the NARCOM agents in Suterville, Zamboanga
City, Sgt. Ani proceeded to the house of the appellant while some agents stayed in the vehicles and
others positioned themselves in strategic places;
28
the appellant met Sgt. Ani and an exchange of
articles took place.
29

The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani.
Additionally, the Court has ruled that the fact that the police officers who accompanied the poseur-buyer
were unable to see exactly what the appellant gave the poseur-buyer because of their distance or
position will not be fatal to the prosecution's case
30
provided there exists other evidence, direct or
circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to prove the consummation of
the sale of the prohibited drug
The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana
which the NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-
arranged signal to the other NARCOM agents, the latter moved in and arrested the appellant inside the
house. They searched him to retrieve the marked money but didn't find it. Upon being questioned, the
appellant said that he gave the marked money to his wife.
31
Thereafter, T/Sgt. Belarga and Sgt. Lego
went to the kitchen and noticed what T/Sgt. Belarga described as a "cellophane colored white and stripe
hanging at the corner of the kitchen."
32
They asked the appellant about its contents but failing to get a
response, they opened it and found dried marijuana leaves. At the trial, the appellant questioned the
admissibility of the plastic bag and the marijuana it contains but the trial court issued an Order ruling that
these are admissible in evidence.
33

Built into the Constitution are guarantees on the freedom of every individual against unreasonable
searches and seizures by providing in Article III, Section 2, the following:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witness he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
288

Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno,
34
declares
inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and
seizures.
35

While a valid search warrant is generally necessary before a search and seizure may be effected,
exceptions to this rule are recognized. Thus, in Alvero v. Dizon,
36
the Court stated that. "[t]he most
important exception to the necessity for a search warrant is the right of search and seizure as an
incident to a lawful arrest."
37

Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure
incident to a lawful arrest, thus:
Sec. 12. Search incident to lawful arrest. A person lawfully arrested may be searched
for dangerous weapons or anything which may be used as proof of the commission of an
offense, without a search warrant.
There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer
to make a search upon the person of the person arrested. As early as 1909, the Court has ruled that
"[a]n officer making an arrest may take from the person arrested any money or property found upon his
person which was used in the commission of the crime or was the fruit of the crime or which might
furnish the prisoner with the means of committing
violence or of escaping, or which may be used as evidence in the trial of the cause . . . "
38
Hence, in a
buy-bust operation conducted to entrap a drug-pusher, the law enforcement agents may seize the
marked money found on the person
of the pusher immediately after the arrest even without arrest and search warrants.
39

In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his
house but found nothing. They then searched the entire house and, in the kitchen, found and seized a
plastic bag hanging in a corner.
The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the
person of the one arrested to include the premises or surroundings under his immediate control.
40

Objects in the "plain view" of an officer who has the right to be in the position to have that view are
subject to seizure and may be presented as evidence.
41

In Ker v. California
42
police officers, without securing a search warrant but having information that the
defendant husband was selling marijuana from his apartment, obtained from the building manager a
passkey to defendants' apartment, and entered it. There they found the defendant husband in the living
room. The defendant wife emerged from the kitchen, and one of the officers, after identifying himself,
observed through the open doorway of the kitchen, a small scale atop the kitchen sink, upon which lay a
brick-shaped package containing green leafy substance which he recognized as marijuana. The
package of marijuana was used as evidence in prosecuting defendants for violation of the Narcotic Law.
The admissibility of the package was challenged before the U.S. Supreme Court, which held, after
observing that it was not unreasonable for the officer to walk to the doorway of the adjacent kitchen on
seeing the defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not
constitute a search, since the officer merely saw what was placed before him in full view.
43
The U.S.
Supreme Court ruled that the warrantless seizure of the marijuana was legal on the basis of the "plain
view" doctrine and upheld the admissibility of the seized drugs as part of the prosecution's evidence.
44

The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate
seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt.
The "plain view" doctrine is usually applied where a police officer is not searching for evidence against
the accused, but nonetheless inadvertently comes across an incriminating object.
45
Furthermore, the
U.S. Supreme Court stated the following limitations on the application of the doctrine:
289

What the "plain view" cases have in common is that the police officer in each of them had a prior
justification for an intrusion in the course of which he came inadvertently across a piece of evidence
incriminating the accused. The doctrine serves to supplement the prior justification whether it be a
warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason
for being present unconnected with a search directed against the accused and permits the
warrantless seizure. Of course, the extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before them; the "plain view" doctrine may
not be used to extend a general exploratory search from one object to another until something
incriminating at last emerges.
46

It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will
not justify the seizure of the object where the incriminating nature of the object is not apparent from the
"plain view" of the object.
47
Stated differently, it must be immediately apparent to the police that the
items that they observe may be evidence of a crime, contraband, or otherwise subject to seizure.
In the instant case, the appellant was arrested and his person searched in the living room. Failing to
retrieve the marked money which they hoped to find, the NARCOM agents searched the whole house
and found the plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain view"
when they arrested the appellant as to justify its seizure. The NARCOM agents had to move from one
portion of the house to another before they sighted the plastic bag. Unlike Ker vs. California, where the
police officer had reason to walk to the doorway of the adjacent kitchen and from which position he saw
the marijuana, the NARCOM agents in this case went from room to room with the obvious intention of
fishing for more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had
no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant
refused to respond, they opened it and found the marijuana. Unlike Ker v. California, where the
marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have
discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even
assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was
within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag
and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately
apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its
contents, whether by its distinctive configuration, its transprarency, or otherwise, that its contents are
obvious to an observer.
48

We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply
and the marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence
pursuant to Article III, Section 3(2) of the Constitution.
The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of
the other pieces of evidence presented by the prosecution to prove that the appellant sold marijuana, in
violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the
testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant to
Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime charged has been
proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ., concur

290






Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 83988 September 29, 1989
RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS
(ULAP), petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents.
Ricardo C. Valmonte for himself and his co-petitioners.
PADILLA, J .:
This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking
the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the
dismantling and banning of the same or, in the alternative, to direct the respondents to formulate
guidelines in the implementation of checkpoints, for the protection of the people.
Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the
Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner Union
of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association whose
members are all members of the IBP.
The factual background of the case is as follows:
On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to
Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting
security operations within its area of responsibility and peripheral areas, for the purpose of establishing
an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to
the social, economic and political development of the National Capital Region.
1
As part of its duty to
maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro
Manila.
Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are
worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical
disposition of the military manning the checkpoints, considering that their cars and vehicles are being
subjected to regular searches and check-ups, especially at night or at dawn, without the benefit of a
search warrant and/or court order. Their alleged fear for their safety increased when, at dawn of 9 July
1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunned down
291

allegedly in cold blood by the members of the NCRDC manning the checkpoint along McArthur Highway
at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint and for continuing
to speed off inspire of warning shots fired in the air. Petitioner Valmonte also claims that, on several
occasions, he had gone thru these checkpoints where he was stopped and his car subjected to
search/check-up without a court order or search warrant.
Petitioners further contend that the said checkpoints give the respondents a blanket authority to make
searches and/or seizures without search warrant or court order in violation of the Constitution;
2
and,
instances have occurred where a citizen, while not killed, had been harassed.
Petitioners' concern for their safety and apprehension at being harassed by the military manning the
checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has been
presented before the Court to show that, in the course of their routine checks, the military indeed
committed specific violations of petitioners' right against unlawful search and seizure or other rights.
In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's Right
(ULAP) vs. Integrated National Police,
3
it was held that individual petitioners who do not allege that any
of their rights were violated are not qualified to bring the action, as real parties in interest.
The constitutional right against unreasonable searches and seizures is a personal right invocable only
by those whose rights have been infringed,
4
or threatened to be infringed. What constitutes a
reasonable or unreasonable search and seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved.
5

Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a
search warrant by the military manning the checkpoints, without more, i.e., without stating the details of
the incidents which amount to a violation of his right against unlawful search and seizure, is not sufficient
to enable the Court to determine whether there was a violation of Valmonte's right against unlawful
search and seizure. Not all searches and seizures are prohibited. Those which are reasonable are not
forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved
according to the facts of each case.
6

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on
the public fair grounds,
7
or simply looks into a vehicle,
8
or flashes a light therein,
9
these do not
constitute unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be
considered as a security measure to enable the NCRDC to pursue its mission of establishing effective
territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also
be regarded as measures to thwart plots to destabilize the government, in the interest of public security.
In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the
insurgency movement, so clearly reflected in the increased killings in cities of police and military men by
NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise in
lawlessness and violence in such urban centers, not all of which are reported in media, most likely
brought about by deteriorating economic conditions which all sum up to what one can rightly consider,
at the very least, as abnormal times. Between the inherent right of the state to protect its existence and
promote public welfare and an individual's right against a warrantless search which is however
reasonably conducted, the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the
same manner that all governmental power is susceptible of abuse. But, at the cost of occasional
inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal
times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a
peaceful community.
292

Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a
review and refinement of the rules in the conduct of the police and military manning the checkpoints was
ordered by the National Capital Regional Command Chief and the Metropolitan Police Director.
10

WHEREFORE, the petition is DISMISSED.
SO ORDERED.

RULE 113
ARREST
SECTION 1. Definition of arrest.Arrest is the taking of a person into custody in order that he may
be bound to answer for the commission of an offense. (1)
SEC. 2. Arrest; how made.An arrest is made by an actual restraint of a person to be arrested, or
by his submission to the custody of the person making the arrest.
No violence or unnecessary force shall be used in making an arrest. The person arrested shall not
be subject to a greater restraint than is necessary for his detention. (2a)
SEC. 3. Duty of arresting officer.It shall be the duty of the officer executing the warrant to arrest
the accused and deliver him to the nearest police station or jail without unnecessary delay. (3a)
SEC. 4. Execution of warrant.The head of the office to whom the warrant of arrest was delivered
for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10)
days after the expiration of the period, the officer to whom it was assigned for execution shall make a
report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state
the reasons therefor. (4a)
SEC. 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has committed it;
and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined while his case
is pending, or has escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with
section 7 of Rule 112, (5a)
SEC. 6. Time of making arrest.An arrest may be made on any day and at any time of the day or
night. (6)
SEC. 7. Method of arrest by officer by virtue of warrant.When making an arrest by virtue of a
warrant, the officer shall inform the person to be arrested of the cause of the arrest and the fact that a
warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has
293

opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer
need not have the warrant in his possession at the time of the arrest but after the arrest, if the person
arrested so requires, the warrant shall be shown to him as soon as practicable. (7a)
SEC. 8. Method of arrest by officer without warrant.When making an arrest without a warrant, the
officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter
is either engaged in the commission of an offense, is pursued immediately after its commission, has
escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or when the giving
of such information will imperil the arrest. (8a)
SEC. 9. Method of arrest by private person.When making an arrest, a private person shall inform
the person to be arrested of the intention to arrest him and the cause of the arrest, unless the latter is
either engaged in the commission of an offense, is pursued immediately after its commission, or has
escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him,
or when the giving of such information will imperil the arrest. (9a)
SEC. 10. Officer may summon assistance.An officer making a lawful arrest may orally summon
as many persons as he deems necessary to assist him in effecting the arrest. Every person so
summoned by an officer shall assist him in effecting the arrest when he can render such assistance
without detriment to himself. (10a)
SEC. 11. Right of officer to break into building or enclosure.An officer, in order to make an arrest
either by virtue of a warrant, or without a warrant as provided in section 5, may break into any building or
enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance
thereto, after announcing his authority and purpose, (11a)
SEC. 12. Right to break out from building or enclosure.Whenever an officer has entered the
building, or enclosure in accordance with the preceding section, he may break out therefrom when
necessary to liberate himself. (12a)
SEC. 13. Arrest after escape or rescue.If a person lawfully arrested escapes or is rescued, any
person may immediately pursue or retake him without a warrant at any time and in any place within the
Philippines. (13)
SEC. 14. Right of attorney or relative to visit person arrested.Any member of the Philippine Bar
shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and
confer privately with such person in the jail or any other place of custody at any hour of the day or night.
Subject to reasonable regulations, a relative of the person arrested can also exercise the same right.
(14a)
RULE 126 SEARCH AND SEIZURE
SECTION 1. Search warrant defined.A search warrant is an order in writing issued in the name of
the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to
search for personal property described therein and bring it before the court. (1)
SEC. 2. Court where application for search warrant shall be filed.An application for search
warrant shall be filed with the following:
(a) Any court within whose territorial jurisdiction a crime was committed.
(b) For compelling reasons stated in the application, any court within the judicial region
where the crime was committed if the place of the commission of the crime is known, or any court
within the judicial region where the warrant shall be enforced.
However, if the criminal action has already been filed, the application shall only be made in the
294

court where the criminal action is pending, (n)
SEC. 3. Personal property to be seized.A search warrant may be issued for the search and
seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense. (2a)
SEC. 4. Requisites for issuing search warrant.A search warrant shall not issue except upon
probable cause in connection with one specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized which may be anywhere in
the Philippines. (3a)
SEC. 5. Examination of complainant; record.The judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and under oath, the
complainant and the witnesses he may produce on facts personally known to them and attach to the
record their sworn statements, together with the affidavits submitted. (4a)
SEC. 6. Issuance and form of search warrant.If the judge is satisfied of the existence of facts
upon which the application is based or that there is probable cause to believe that they exist, he shall
issue the warrant, which must be substantially in the form prescribed by these Rules.
*
(5a)
SEC. 7. Right to break door or window to effect search.The officer, if refused admittance to the
place of directed search after giving notice of his purpose and authority, may break 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. (6)
SEC. 8. Search of house, room, or premises to be made in presence of two witnesses.No search
of a house, room, or any other premises 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. (7a)
SEC. 9. Time of making search.The warrant must direct that it be served in the day time, unless
the affidavit asserts that the property is on the person or in the place ordered to be searched, in which
case a direction may be inserted that it be served at any time of the day or night. (8)
SEC. 10. Validity of search warrant.A search warrant shall be valid for ten (10) days from its date.
Thereafter, it shall be void. (9a)
SEC. 11. Receipt for the property seized.The officer seizing property under the warrant must give
a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and
seizure 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, leave a receipt in the place in which he
found the seized property. (10a)
SEC. 12. Delivery of property and inventory thereof to court; return and proceedings thereon.(a)
The

officer must forthwith deliver the property seized to the judge who issued the warrant, together with
a true inventory thereof duly verified under oath.
(b) Ten (10) days after issuance .of the search warrant, the issuing judge shall ascertain if the return
has been made, and if none, shall summon the person to whom the warrant was issued and require him
to explain why no return was made. If the return has been made, the judge shall ascertain whether



295

section 11 of this Rule has been complied with and shall require that the property seized be delivered to
him. The judge shall see to it that subsection (a) hereof has been complied with.
(c) The return on the search warrant shall be filed and kept by the custodian of the log book on
search warrants who shall enter therein the date of the return, the result, and other actions of the judge.
A violation of this section shall constitute contempt of court. (11a)
SEC. 13. Search incident to lawful arrest.A person lawfully arrested may be searched for
dangerous weapons or anything which may have been used or constitute proof in the commission of an
offense without a search warrant. (12a)
SEC. 14. Motion to quash a search warrant or to suppress evidence; where to file.A motion to
quash a search warrant and/or to suppress evidence obtained thereof may be filed in and acted upon
only by the court where the action has been instituted. If no criminal action has been instituted, the
motion may be filed in and resolved by the court that issued the search warrant. However, if such court
failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall
be resolved by the latter court. (n)