NOTES & CASES

IN POLITICAL LAW

February 2012 Edition

Volume II
(BILL OF RIGHTS)

by:
ATTY. LARRY D. GACAYAN
Professor
(Constitutional Law Review, Constitutional Law I & II & Wills and
Succession)
COLLEGE OF LAW
UNIVERSITY OF THE CORDILLERAS
Pre-Bar Reviewer
CPRS PRE-BAR REVIEW CENTER
(Cagayan de Oro City, Zamboanga City, Iloilo City, Tacloban City,
Ozamis City, Cebu City, Davao City and Baguio City)
EXCELLENT PRE-BAR REVIEW CENTER
(Naga City, Cebu City and Baguio City)
POWERHAUS PRE-BAR REVIEW CENTER
(Baguio, Manila, Santiago City, Dipolog City, San Fernando City
(LU) and Tagbilaran City)
PANGASINAN REVIEW CENTER
Dagupan City
HOLY TRINITY REVIEW CENTER
General Santos City

CHAPTER 1
FUNDAMENTAL POWERS OF THE STATE
(Police Power)
1. Define:
A. police power---is the power vested in the legislature by the Constitution to
make, ordain, establish all manner of wholesome and reasonable laws for
the good and welfare of the State and its people. (ERMITA MALATE
HOTEL VS. CITY MAYOR, July 31, 1967)
The basic purposes of police power are:
a. to promote the general welfare, comfort and convenience of the
people; (ASSOCIATION OF SMALL LANDOWNERS VS.
SECRETARY, 175 SCRA 343; US VS. TORIBIO, 15 Phil. 85
b. to promote and preserve public health; (VILLANUEVA VS.
CASTANEDA, September 21, 1987; DECS VS. SAN DIEGO, 180
SCRA 533 [NMAT]; LORENZO VS. DIRECTOR OF HEALTH, 50
Phil. 595apprehend and confine lepers in a leprosarium)
Police Power as a limitation to the right to
practice a profession
PROFESSIONAL REGULATIONS COMMISSION VS. ARLENE
DE GUZMAN, ET AL., June 21, 2004
Facts:
After the Professional Regulations Commission (PRC) released the
names of successful examinees in the Medical Licensure Examination, the
Board of Medicines observed that the grades of the 79 Fatima College of
Medicine successful examinees were unusually and exceptionally high in
the two (2) most difficult subjects of the exam, i.e., Biochemistry and
Obstetrics and Gynecology.
The Board then issued Resolution No. 19 withholding the
registration as physicians of all the examinees from Fatima College of
Medicine. Compared with other examines from other schools, the results
of those from Fatima were not only incredibly high but unusually
clustered close to each other. The NBI Investigation found that the
Fatima examinees gained early access to the test questions.
Held:
It must be stressed that the power to regulate the practice of a
profession or pursuit of an occupation cannot be exercised by the State in

3
an arbitrary, despotic or oppressive manner. However, the regulating body
has the right to grant or forbid such privilege in accordance with certain
conditions.
But like all rights and freedoms guaranteed by the Constitution,
their exercise may be regulated pursuant to the police power of the State to
safeguard health, morals, peace, education, order, safety, and general
welfare of the people. As such, mandamus will not lie to compel the Board
of Medicine to issue licenses for the respondents to practice medicine.
RA 2382 which prescribes the requirements for admission to the
practice of medicine, the qualifications of the candidates for the board
examination, the scope and conduct of the examinations, the grounds for
the denying of the issuance of a physicians license, or revoking a license
that has been issued. It is therefore clear that the examinee must prove that
he has fully complied with all the conditions and requirements imposed by
law and the licensing authority to be granted the privilege to practice
medicine. In short, he shall have all the qualifications and none of the
disqualifications. The petition is therefore granted.
c. to promote and protect public safety; (AGUSTIN VS. EDU, 88 SCRA
195; TAXICAB OPERATORS VS. JUINIO, 119 SCRA 897 )
d. to maintain and safeguard peace and order; (GUAZON VS. DE
VILLA)
e. to protect public morals; (CITY OF MANILA VS. JUDGE LAGUIO,
JR., 455 SCRA 308; WHITE LIGHT CORPORATION VS. CITY OF
MANILA, January 20, 2009; DE LA CRUZ VS. PARAS, 123 SCRA
569; ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967;
VILLAVICENCIO VS. MAYOR LUKBAN OF MANILA, 39 Phil.
778; JMM PROMOTIONS VS. CA, 260 SCRA 319; VELASCO VS.
VILLEGAS, February 13, 1983)
An Ordinance of the City of Manila
prohibiting short-time in Motels and
Hotels.
WHITE LIGHT CORPORATION, TITANIUM
CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION vs. CITY OF
MANILA, represented by
MAYOR ALFREDO S.
LIM, G.R. No. 122846, January 20, 2009
TINGA, J.:
With another city ordinance of Manila also principally involving
the tourist district as subject, the Court is confronted anew with the
incessant clash between government power and individual liberty in
tandem with the archetypal tension between law and morality.

In City of Manila v. Laguio, Jr, the Court affirmed the nullification

of a city ordinance barring the operation of motels and inns, among other
establishments, within the Ermita-Malate area. The petition at bar assails a
similarly-motivated city ordinance that prohibits those same
establishments from offering short-time admission, as well as pro-rated or
wash up rates for such abbreviated stays. Our earlier decision tested the
city ordinance against our sacred constitutional rights to liberty, due
process and equal protection of law. The same parameters apply to the
present petition.
This Petition challenges the validity of Manila City Ordinance
No. 7774 entitled, An Ordinance Prohibiting Short-Time Admission,
Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels,
Motels, Inns, Lodging Houses, Pension Houses, and Similar
Establishments in the City of Manila (the Ordinance).
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim)
signed into law the Ordinance. The Ordinance is reproduced in full,
hereunder:
SEC. 3. Pursuant to the above policy, short-time admission and
rate [sic], wash-up rate or other similarly concocted terms, are hereby
prohibited in hotels, motels, inns, lodging houses, pension houses and
similar establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean
admittance and charging of room rate for less than twelve (12) hours at
any given time or the renting out of rooms more than twice a day or any
other term that may be concocted by owners or managers of said
establishments but would mean the same or would bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall
violate any provision of this ordinance shall upon conviction thereof be
punished by a fine of Five Thousand (P5,000.00) Pesos or imprisonment
for a period of not exceeding one (1) year or both such fine and
imprisonment at the discretion of the court; Provided, That in case of [a]
juridical person, the president, the manager, or the persons in charge of the
operation thereof shall be liable: Provided, further, That in case of
subsequent conviction for the same offense, the business license of the
guilty party shall automatically be cancelled.
On December 15, 1992, the Malate Tourist and Development
Corporation (MTDC) filed a complaint for declaratory relief with prayer
for a writ of preliminary injunction and/or temporary restraining order (
TRO) with the Regional Trial Court (RTC) of Manila, Branch 9
impleading as defendant, herein respondent City of Manila (the City)

5
represented by Mayor Lim. MTDC prayed that the Ordinance, insofar as it
includes motels and inns as among its prohibited establishments, be
declared invalid and unconstitutional. MTDC claimed that as owner and
operator of the Victoria Court in Malate, Manila it was authorized by
Presidential Decree (P.D.) No. 259 to admit customers on a short time
basis as well as to charge customers wash up rates for stays of only three
hours.
They contend that the assailed Ordinance is an invalid exercise of
police power.
II.
To students of jurisprudence, the facts of this case will recall to
mind not only the recent City of Manila ruling, but our 1967 decision in
Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City
Mayor of Manila. Ermita-Malate concerned the City ordinance requiring
patrons to fill up a prescribed form stating personal information such as
name, gender, nationality, age, address and occupation before they could
be admitted to a motel, hotel or lodging house. This earlier ordinance was
precisely enacted to minimize certain practices deemed harmful to public
morals. A purpose similar to the annulled ordinance in City of Manila
which sought a blanket ban on motels, inns and similar establishments in
the Ermita-Malate area. However, the constitutionality of the ordinance in
Ermita-Malate was sustained by the Court.
The common thread that runs through those decisions and the case
at bar goes beyond the singularity of the localities covered under the
respective ordinances. All three ordinances were enacted with a view of
regulating public morals including particular illicit activity in transient
lodging establishments. This could be described as the middle case,
wherein there is no wholesale ban on motels and hotels but the services
offered by these establishments have been severely restricted. At its core,
this is another case about the extent to which the State can intrude into and
regulate the lives of its citizens.
The test of a valid ordinance is well established. A long line of
decisions including City of Manila has held that for an ordinance to be
valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure
prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial
or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not be
unreasonable .
A.

6
Police power, while incapable of an exact definition, has been
purposely veiled in general terms to underscore its comprehensiveness to
meet all exigencies and provide enough room for an efficient and flexible
response as the conditions warrant. Police power is based upon the
concept of necessity of the State and its corresponding right to protect
itself and its people.Police power has been used as justification for
numerous and varied actions by the State. These range from the regulation
of dance halls, movie theaters, gas stations, and cockpits. The awesome
scope of police power is best demonstrated by the fact that in its hundred
or so years of presence in our nations legal system, its use has rarely been
denied.
The apparent goal of the Ordinance is to minimize if not eliminate
the use of the covered establishments for illicit sex, prostitution, drug use
and alike. These goals, by themselves, are unimpeachable and certainly
fall within the ambit of the police power of the State.
B.
The primary constitutional question that confronts us is one of due
process, as guaranteed under Section 1, Article III of the Constitution. Due
process evades a precise definition. The purpose of the guaranty is to
prevent arbitrary governmental encroachment against the life, liberty and
property of individuals. The due process guaranty serves as a protection
against arbitrary regulation or seizure. Even corporations and partnerships
are protected by the guaranty insofar as their property is concerned.
The due process guaranty has traditionally been interpreted as
imposing two related but distinct restrictions on government, "procedural
due process" and "substantive due process." Procedural due process refers
to the procedures that the government must follow before it deprives a
person of life, liberty, or property. Procedural due process concerns itself
with government action adhering to the established process when it makes
an intrusion into the private sphere. Examples range from the form of
notice given to the level of formality of a hearing.
Substantive due process completes the protection envisioned by
the due process clause. It inquires whether the government has sufficient
justification for depriving a person of life, liberty, or property.
The question of substantive due process, more so than most other
fields of law, has reflected dynamism in progressive legal thought tied
with the expanded acceptance of fundamental freedoms. Police power,
traditionally awesome as it may be, is now confronted with a more
rigorous level of analysis before it can be upheld. The vitality though of
constitutional due process has not been predicated on the frequency with
which it has been utilized to achieve a liberal result for, after all, the
libertarian ends should sometimes yield to the prerogatives of the State.
Instead, the due process clause has acquired potency because of the

7
sophisticated methodology that has emerged to determine the proper metes
and bounds for its application.
C.
The general test of the validity of an ordinance on substantive due
process grounds is best tested when assessed with the evolved footnote 4
test laid down by the U.S. Supreme Court in U.S. v. Carolene Products.
Footnote 4 of the Carolene Products case acknowledged that the judiciary
would defer to the legislature unless there is a discrimination against a
discrete and insular minority or infringement of a fundamental
right. Consequently, two standards of judicial review were established:
strict scrutiny for laws dealing with freedom of the mind or restricting
the political process, and the rational basis standard of review for
economic legislation.
A third standard, denominated as heightened or immediate
scrutiny, was later adopted by the U.S. Supreme Court for evaluating
classifications based on gender and legitimacy, Immediate scrutiny was
adopted by the U.S. Supreme Court in Craig, after the Court declined to
do so in Reed v. Reed. While the test may have first been articulated in
equal protection analysis, it has in the United States since been applied in
all substantive due process cases as well.
We ourselves have often applied the rational basis test mainly in
analysis of equal protection challenges. Using the rational basis
examination, laws or ordinances are upheld if they rationally further a
legitimate governmental interest. Under intermediate review,
governmental interest is extensively examined and the availability of less
restrictive measures is considered. Applying strict scrutiny, the focus is on
the presence of compelling, rather than substantial, governmental interest
and on the absence of less restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny
refers to the standard for determining the quality and the amount of
governmental interest brought to justify the regulation of fundamental
freedoms. Strict scrutiny is used today to test the validity of laws dealing
with the regulation of speech, gender, or race as well as other fundamental
rights as expansion from its earlier applications to equal protection. The
United States Supreme Court has expanded the scope of strict scrutiny to
protect fundamental rights such as suffrage, judicial access and interstate
travel.
If we were to take the myopic view that an Ordinance should be
analyzed strictly as to its effect only on the petitioners at bar, then it would
seem that the only restraint imposed by the law which we are capacitated
to act upon is the injury to property sustained by the petitioners, an injury
that would warrant the application of the most deferential standard the
rational basis test. Yet as earlier stated, we recognize the capacity of the

8
petitioners to invoke as well the constitutional rights of their patrons
those persons who would be deprived of availing short time access or
wash-up rates to the lodging establishments in question.
D.
It cannot be denied that the primary animus behind the ordinance is
the curtailment of sexual behavior. The City asserts before this Court that
the subject establishments have gained notoriety as venue of
prostitution, adultery and fornications in Manila since they provide the
necessary atmosphere for clandestine entry, presence and exit and thus
became the ideal haven for prostitutes and thrill-seekers. Whether or not
this depiction of a mise-en-scene of vice is accurate, it cannot be denied
that legitimate sexual behavior among willing married or consenting
single adults which is constitutionally protected will be curtailed as well,
as it was in the City of Manila case. Our holding therein retains
significance for our purposes:
We cannot discount other legitimate activities which the Ordinance
would proscribe or impair. There are very legitimate uses for a wash rate
or renting the room out for more than twice a day. Entire families are
known to choose pass the time in a motel or hotel whilst the power is
momentarily out in their homes. In transit passengers who wish to wash up
and rest between trips have a legitimate purpose for abbreviated stays in
motels or hotels. Indeed any person or groups of persons in need of
comfortable private spaces for a span of a few hours with purposes other
than having sex or using illegal drugs can legitimately look to staying in a
motel or hotel as a convenient alternative.
E.
Further, it is apparent that the Ordinance can easily be
circumvented by merely paying the whole day rate without any
hindrance to those engaged in illicit activities. Moreover, drug dealers
and prostitutes can in fact collect wash rates from their clientele by
charging their customers a portion of the rent for motel rooms and
even apartments.
The Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting the rights of their
patrons without sufficient justification. The Ordinance rashly equates
wash rates and renting out a room more than twice a day with
immorality without accommodating innocuous intentions.
To be candid about it, the oft-quoted American maxim that you
cannot legislate morality is ultimately illegitimate as a matter of law,
since as explained by Calabresi, that phrase is more accurately interpreted
as meaning that efforts to legislate morality will fail if they are widely at
variance with public attitudes about right and wrong. Our penal laws, for

9
one, are founded on age-old moral traditions, and as long as there are
widely accepted distinctions between right and wrong, they will remain so
oriented.
WHEREFORE, the Petition is GRANTED. Ordinance No. 7774
is hereby declared UNCONSTITUTIONAL.
*********************************
An Ordinance requiring the motels in
Ermita-Malate area to transfer to another
place in the City of Manila as well as
prohibiting THE ESTABLISHMENT OR
OPERATION
OF
BUSINESSES
PROVIDING CERTAIN FORMS OF
AMUSEMENT,
ENTERTAINMENT,
SERVICES AND FACILITIES IN THE
ERMITA-MALATE AREA was held
unconstitutional
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the
City of Manila, et al vs. HON. PERFECTO A.S. LAGUIO, JR., as
Presiding Judge, RTC, Manila and MALATE TOURIST
DEVELOPMENT CORPORATION, GR No. 118127, April 12, 2005
TINGA, J.:
FACTS:
The City Council of Manila enacted on 9 March 1993 and approved
by petitioner City Mayor on 30 March 1993 an Ordinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR
OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF
AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN
THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR
VIOLATION THEREOF, AND FOR OTHER PURPOSES.
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the
contrary notwithstanding, no person, partnership, corporation or entity
shall, in the Ermita-Malate area bounded by Teodoro M. Kalaw Sr.
Street in the North, Taft Avenue in the East, Vito Cruz Street in the South
and Roxas Boulevard in the West, pursuant to P.D. 499 be allowed or
authorized to contract and engage in, any business providing certain
forms of amusement, entertainment, services and facilities where

10
women are used as tools in entertainment and which tend to disturb
the community, annoy the inhabitants, and adversely affect the social
and moral welfare of the community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in
behalf of the said officials are prohibited from issuing permits,
temporary or otherwise, or from granting licenses and accepting
payments for the operation of business enumerated in the preceding
section.
SEC. 3. Owners and/or operator of establishments engaged in, or
devoted to, the businesses enumerated in Section 1 hereof are hereby
given three (3) months from the date of approval of this ordinance
within which to wind up business operations or to transfer to any
place outside of the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area, such as but not
limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for
wholesome family entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also of
cultural shows, stage and theatrical plays, art exhibitions, concerts and the like.
11. Businesses allowable within the law and medium intensity districts as
provided for in the zoning ordinances for Metropolitan Manila, except new warehouse or
open-storage depot, dock or yard, motor repair shop, gasoline service station, light
industry with any machinery, or funeral establishments.
The Ordinance was questioned as an invalid exercise of police power and
violative of the due process and equal protection clause of the 1987 Constitution.
HELD:

11
The tests of a valid ordinance are well established. A long line of
decisions has held that for an ordinance to be valid, it must not only be
within the corporate powers of the local government unit to enact and
must be passed according to the procedure prescribed by law, it must also
conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must not
prohibit but may regulate trade; (5) must be general and consistent
with public policy; and (6) must not be unreasonable.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and farreaching, is subordinate to the constitutional limitations thereon; and is
subject to the limitation that its exercise must be reasonable and for the
public good. In the case at bar, the enactment of the Ordinance was an
invalid exercise of delegated power as it is unconstitutional and repugnant
to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.
SEC. 14. The State recognizes the role of women in nation-building, and
shall ensure the fundamental equality before the law of women and men.
SEC. 1. No person shall be deprived of life, liberty or property without
due process of law, nor shall any person be denied the equal protection of
laws.
Sec. 9. Private property shall not be taken for public use without just
compensation.
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat
(N)o person shall be deprived of life, liberty or property without due
process of law. . . . There is no controlling and precise definition of due
process. It furnishes though a standard to which governmental action
should conform in order that deprivation of life, liberty or property, in
each appropriate case, be valid. This standard is aptly described as a
responsiveness to the supremacy of reason, obedience to the dictates of
justice, and as such it is a limitation upon the exercise of the police power.
The purpose of the guaranty is to prevent governmental encroachment
against the life, liberty and property of individuals; to secure the individual
from the arbitrary exercise of the powers of the government, unrestrained
by the established principles of private rights and distributive justice; to

12
protect property from confiscation by legislative enactments, from seizure,
forfeiture, and destruction without a trial and conviction by the ordinary
mode of judicial procedure; and to secure to all persons equal and
impartial justice and the benefit of the general law. The guaranty serves as
a protection against arbitrary regulation, and private corporations and
partnerships are persons within the scope of the guaranty insofar as their
property is concerned. This clause has been interpreted as imposing two
separate limits on government, usually called procedural due process
and substantive due process.
Procedural due process, as the phrase implies, refers to the procedures
that the government must follow before it deprives a person of life, liberty,
or property. Classic procedural due process issues are concerned with what
kind of notice and what form of hearing the government must provide
when it takes a particular action.
Substantive due process, as that phrase connotes, asks whether the
government has an adequate reason for taking away a persons life, liberty,
or property. In other words, substantive due process looks to whether there
is a sufficient justification for the governments action. Case law in the
United States (U.S.) tells us that whether there is such a justification
depends very much on the level of scrutiny used. For example, if a law is
in an area where only rational basis review is applied, substantive due
process is met so long as the law is rationally related to a legitimate
government purpose. But if it is an area where strict scrutiny is used, such
as for protecting fundamental rights, then the government will meet
substantive due process only if it can prove that the law is necessary to
achieve a compelling government purpose. The police power granted to
local government units must always be exercised with utmost observance
of the rights of the people to due process and equal protection of the law.
Such power cannot be exercised whimsically, arbitrarily or despotically as
its exercise is subject to a qualification, limitation or restriction demanded
by the respect and regard due to the prescription of the fundamental law,
particularly those forming part of the Bill of Rights. Individual rights, it
bears emphasis, may be adversely affected only to the extent that may
fairly be required by the legitimate demands of public interest or public
welfare. Due process requires the intrinsic validity of the law in interfering
with the rights of the person to his life, liberty and property.
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale
for the enactment of the Ordinance, and to free it from the imputation
of constitutional infirmity, not only must it appear that the interests of
the public generally, as distinguished from those of a particular class,
require an interference with private rights, but the means adopted
must be reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals. It must be evident that
no other alternative for the accomplishment of the purpose less

13
intrusive of private rights can work. A reasonable relation must exist
between the purposes of the police measure and the means employed
for its accomplishment, for even under the guise of protecting the
public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded. Lacking a
concurrence of these two requisites, the police measure shall be struck
down as an arbitrary intrusion into private rights and a violation of
the due process clause.
The Ordinance was enacted to address and arrest the social ills
purportedly spawned by the establishments in the Ermita-Malate area
which are allegedly operated under the deceptive veneer of legitimate,
licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses,
cocktail lounges, hotels and motels. Petitioners insist that even the Court
in the case of Ermita-Malate Hotel and Motel Operators Association, Inc.
v. City Mayor of Manila had already taken judicial notice of the alarming
increase in the rate of prostitution, adultery and fornication in Manila
traceable in great part to existence of motels, which provide a necessary
atmosphere for clandestine entry, presence and exit and thus become the
ideal haven for prostitutes and thrill-seekers. The object of the Ordinance
was, accordingly, the promotion and protection of the social and moral
values of the community. Granting for the sake of argument that the
objectives of the Ordinance are within the scope of the City Councils
police powers, the means employed for the accomplishment thereof were
unreasonable and unduly oppressive.
The Ordinance seeks to legislate morality but fails to address the core
issues of morality. Try as the Ordinance may to shape morality, it should
not foster the illusion that it can make a moral man out of it because
immorality is not a thing, a building or establishment; it is in the hearts of
men. The City Council instead should regulate human conduct that occurs
inside the establishments, but not to the detriment of liberty and privacy
which are covenants, premiums and blessings of democracy.
While petitioners earnestness at curbing clearly objectionable social
ills is commendable, they unwittingly punish even the proprietors and
operators of wholesome, innocent establishments. In the instant case,
there is a clear invasion of personal or property rights, personal in the case
of those individuals desirous of owning, operating and patronizing those
motels and property in terms of the investments made and the salaries to
be paid to those therein employed. If the City of Manila so desires to put
an end to prostitution, fornication and other social ills, it can instead
impose reasonable regulations such as daily inspections of the
establishments for any violation of the conditions of their licenses or
permits; it may exercise its authority to suspend or revoke their licenses
for these violations; and it may even impose increased license fees. In
other words, there are other means to reasonably accomplish the desired
end.
Means employed are

14
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage
parlors, karaoke bars, beerhouses, night clubs, day clubs, super clubs,
discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate
area. In Section 3 thereof, owners and/or operators of the enumerated
establishments are given three (3) months from the date of approval of the
Ordinance within which to wind up business operations or to transfer to
any place outside the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area. Further, it states in
Section 4 that in cases of subsequent violations of the provisions of the
Ordinance, the premises of the erring establishment shall be closed and
padlocked permanently.
It is readily apparent that the means employed by the Ordinance for
the achievement of its purposes, the governmental interference itself,
infringes on the constitutional guarantees of a persons fundamental right
to liberty and property.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it
substantially divests the respondent of the beneficial use of its property.[77]
The Ordinance in Section 1 thereof forbids the running of the enumerated
businesses in the Ermita-Malate area and in Section 3 instructs its
owners/operators to wind up business operations or to transfer outside the
area or convert said businesses into allowed businesses. An ordinance
which permanently restricts the use of property that it can not be used for
any reasonable purpose goes beyond regulation and must be recognized as
a taking of the property without just compensation.[78] It is intrusive and
violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that
private property shall not be taken for public use without just
compensation. The provision is the most important protection of property
rights in the Constitution. This is a restriction on the general power of the
government to take property. The constitutional provision is about
ensuring that the government does not confiscate the property of some to
give it to others. In part too, it is about loss spreading. If the government
takes away a persons property to benefit society, then society should pay.
The principal purpose of the guarantee is to bar the Government from
forcing some people alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole.[79]
The second option instructs the owners to abandon their property and
build another one outside the Ermita-Malate area. In every sense, it
qualifies as a taking without just compensation with an additional burden
imposed on the owner to build another establishment solely from his
coffers. The proffered solution does not put an end to the problem, it

15
merely relocates it. Not only is this impractical, it is unreasonable, onerous
and oppressive. The conversion into allowed enterprises is just as
ridiculous. How may the respondent convert a motel into a restaurant or a
coffee shop, art gallery or music lounge without essentially destroying its
property? This is a taking of private property without due process of law,
nay, even without compensation.
Petitioners cannot therefore order the closure of the enumerated
establishments without infringing the due process clause. These lawful
establishments may be regulated, but not prevented from carrying on their
business. This is a sweeping exercise of police power that is a result of a
lack of imagination on the part of the City Council and which amounts to
an interference into personal and private rights which the Court will not
countenance. In this regard, we take a resolute stand to uphold the
constitutional guarantee of the right to liberty and property.
The foregoing premises show that the Ordinance is an unwarranted
and unlawful curtailment of property and personal rights of citizens. For
being unreasonable and an undue restraint of trade, it cannot, even under
the guise of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities
imposed. Similar subjects, in other words, should not be treated
differently, so as to give undue favor to some and unjustly discriminate
against others.[98] The guarantee means that no person or class of persons
shall be denied the same protection of laws which is enjoyed by other
persons or other classes in like circumstances. [99] The equal protection of
the laws is a pledge of the protection of equal laws.[100] It limits
governmental discrimination. The equal protection clause extends to
artificial persons but only insofar as their property is concerned.[101]
Legislative bodies are allowed to classify the subjects of legislation. If
the classification is reasonable, the law may operate only on some and
not all of the people without violating the equal protection clause. [103]
The classification must, as an indispensable requisite, not be
arbitrary. To be valid, it must conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.[104]
In the Courts view, there are no substantial distinctions between motels, inns,
pension houses, hotels, lodging houses or other similar establishments. By definition, all
are commercial establishments providing lodging and usually meals and other services

16
for the public. No reason exists for prohibiting motels and inns but not pension houses,
hotels, lodging houses or other similar establishments. The classification in the instant
case is invalid as similar subjects are not similarly treated, both as to rights conferred and
obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a
just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation
of motels in the Ermita-Malate area but not outside of this area. A noxious establishment
does not become any less noxious if located outside the area.
f. to promote the economic security of the people. (ICHONG VS.
HERNANDEZ, 101 Phil. 11155)
Not a valid exercise of police power:
a. CITY GOVERNMENT OF QC VS. ERICTA, 122 SCRA 759;
(Requiring private cemeteries to set aside a portion of their land area
to be given as burial place for paupers, free of charge, is an invalid
exercise of police power. It constitutes taking of a private property
for public use without just compensation. The local government units
could not validly pass to private cemeteries their obligation under the
Local Government Code to provide cemeteries to their constituents)
b. YNOT VS. IAC, 148 SCRA 659; the Director of Animal Industry or the
Chairman if the National Meat Commission may dispose of the carabaos
or carabeef confiscated for violating the executive order prohibiting the
inter-provincial transport of said animals without prior permit issued by
the government to charitable agencies as he may deem fit. This is
oppressive and unreasonable since the owner of the animals is denied due
process of law and the Director of Animal Industry or Chairman of the
National Meat Commission is given so much discretion as the law is not
complete in itself nor is there a standard to guide the official.
c. DE LA CRUZ VS. PARAS, 123 SCRA 569
(An Ordinance of Bocaue, Bulacan prohibiting the operation of
nightclubs is unconstitutional. It is not a valid exercise of police power.
This is so because nightclubs are not illegal per se. They can be regulated
but not prohibited)
B. POWER OF EMINENT DOMAIN
3. POWER OF TAXATION
2. Differences and similarities
DIDIPIO EARTH SAVERS MULTI PURPOSE ASSOCIATION VS.
DENR SEC. ELISEA GOZU, ET AL., 485 SCRA 586

17
Chico-Nazario, J.
1.

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

condemn or to take private property for public use upon payment of just
compensation while police power is the power of the state to promote
public welfare by restraining and regulating the use of liberty and property
without compensation;
2.
In the exercise of police power, enjoyment of a property is
restricted because the continued use thereof would be injurious to public
welfare. In such case, there is no compensable taking provided none of the
property interests is appropriated for the use or for the benefit of the
public. Otherwise, there should be compensable taking if it would result to
public use.
3.
Properties condemned under police power are usually noxious or
intended for noxious purpose; hence , no compensation shall be paid.
Likewise, in the exercise of police power, property rights of private
individuals are subjected to restraints and burdens in order to secure the
general comfort, health and prosperity of the state.
While the power of eminent domain often results in the
appropriation of title to or possession of property, it need not always be the
case. Taking may include trespass without actual eviction of the owner,
material impairment of the value of the property or prevention of the
ordinary uses for which the property was intended such as the
establishment of an easement.
As such, an imposition of burden over a private property through
easement (by the government) is considered taking; hence, payment of just
compensation is required. The determination of just compensation,
however, is a judicial function (EPZA vs. Dulay, 149 SCRA 305) and
initial determinations on just compensation by the executive department
and Congress cannot prevail over the courts findings.
3. Limitations in the exercise of said powers
4. Tests for a valid exercise of police power
a. the interests of the public, not mere particular class, require the
exercise of police power; (LAWFUL SUBJECT)
b. the means employed is reasonably necessary for the
accomplishment of the purpose and not unduly oppressive to
individuals. (LAWFUL MEANS). In short, the end does not
justify the means.
Illustration: Lawful subject but the
means employed is illegal
RESTITUTO YNOT VS. THE ITERMEDIATE APPELLATE
COURT, G.R. No. 74457,March 20, 1987

18
Cruz, J.
Facts:
1. On January, 13, 1984, Ynot transported six carabaos by using a
pumpboat from Masbate to Iloilo. The six carabaos, were, however,
confiscated by the Police Station Commander of Baratoc Nuevo, Iloilo for
alleged violation of Executive Order No. 626-A which prohibits the interprovincial transporting of carabaos and carabeefs which does not comply
with the provisions of Executive No.626;
2. That Section 1 of the said law provides that "henceforth, no carabaos
regardless of age, sex physical condition or purpose and no carabeef shall
be transported from one province to another. The carabao or carabeef
transported in violation of the said law shall be subjected to confiscation
and forfeiture by the government to be distributed to charitable institution
and similar institutions as the Chairman of the National meat inspection
Commission may see fit in the case of the carabeef, and to deserving
farmers through the dispersal of the Director of Animal Industry, in the
case of carabaos;
3. Ynot filed a suit for recovery and the carabao were returned to him
upon the issuance of a writ of replevin upon his filing of a supersede as
bond in the amount of P12,000.00;
4. After trial of the case, the Judge upheld the validity of the act of the
Police Station Commander in confiscating the carabaos. Ynot was ordered
to returned the carabaos but since he could not do so, the court ordered the
confiscation of the bond. The court refused to rule on the constitutionality
of the said Executive Order on the ground of lack of authority to do so and
also because of its presumed validity;
5. The petitioner appealed to the IAC but the said court upheld the
decision of the Trial Court. Hence this petition for review on certiorari
before the Supreme Court where YNOT claimed that the penalty of
confiscation is INVALID the same was imposed without according the
owner the right to be heard before a competent and impartial tribunal as
guaranteed by due process.
Issues:
1. May a lower court (like the MTC, RTC, of the Court of Appeals)
declare a law unconstitutional?
2. Is Executive Order No. 626-A constitutional?
Sub-issues under this are:
a. Was it a valid police power measure?

19
b. Was there an undue delegation of legislative power?
Held:
1.
While the lower courts should observe a becoming modesty in
examining constitutional question, THEY ARE NOT PREVENTED
FROM RESOLVING THE SAME WHENEVER WARRANTED, subject
only to review by the supreme court. This is so because under Section 5,
[2(a)], Art. VIII, of the 1987 Constitution provides that the Supreme Court
has the power to "review, revise, reverse, modify or affirm on appeal" or
certiorari as the rules of court may provide, final judgments and orders of
the lower courts in all cases involving the constitutionality of certain
measures. This simply means that lower courts may declare whether or not
a law is constitutional.
2. In order that a measure or law may be justified under the police
power of the state, it must meet two tests:
a. the subject must be lawful; and
b. the means employed is lawful.
Since the prohibition of the slaughtering of carabaos except where they
are at least 7 years old when male and at least 11 years old when female is
in furtherance of the public interest since said carabaos are very useful to
the work at the farm, it is conceded
that the Executive Order meets the first test---- it has lawful subject.
But does the law meets the second requisite or test which is lawful
method?
Executive Order No. 626-A imposes an absolute ban not on the
slaughtering of carabaos BUT ON THIER MOVEMENT, providing that
"no carabao regardless of age, sex, physical condition or purpose and no
carabeef shall be transported from one province to another." The
reasonable connection between the means employed and the purpose
sought to be achieved by the question measure is missing. We do not see
how the prohibition of the inter-provincial transport can prevent their
indiscriminate slaughter considering that they can be killed any where,
with no less difficulty in one province than in the other. Obviously,
retaining a carabao in one province will not prevent their slaughter there,
any more than moving them to another province will make it easier to kill
them there.
The law is unconstitutional because it struck at once and pounced
upon the petitioner without giving him a chance to be heard, thus denying
him the centuries-old guarantee of elementary fair play.
Since the Executive Order in question is a penal law, then
violation thereof should be pronounce not by the police BUT BY A

20
COURT OF JUSTICE, WHICH ALONE WOULD HAVE HAD THE
AUTHORITY TO IMPOSE THE PRESCRIBED PENALTY, AND ONLY
AFTER TRIAL AND CONVICTION OF THE ACCUSED.
Also, there is no reasonable guidelines or bases of the Director of
Animal Industry or the Chairman of the NATIONAL Meat Inspection
Commission in the disposition of the carabaos or carabeef other than what
"they may see fit" which is very dangerous and could result to
opportunities for partiality and abuse, and even graft and corruption.
The Executive Order is, therefore, invalid and unconstitutional
and not a valid police power measure because the METHOD
EMPLOYED TO CONSERVE CARABAOS IS NOT REASONABLY
NECESSARY TO THE PURPOSE OF THE LAW AND, WORSE IS
UNDULY OPPRESSIVE. DUE PROCESS IS VIOLATED BECAUSE
THE OWNER OF THE PROPERTY CONFISCATED IS DENIED THE
RIGHT TO BE HEARD IN HIS DEFENSE AND IS IMMEDIATELY
CONDEMNED AND PUNISHED. THE CONFERMENT ON THE
ADMINISTRATIVE AUTHORITIES (like the police) OF THE POWER
TO ADJUDGE THE GUILT OF THE SUPPOSED OFFENDER IS A
CLEAR ENCROACHMENT OF JUDICIAL FUNCTIONS AND
MILITATES AGAINST THE DOCTRINE OF SEPARATION OF
POWERS.
Also, there is undue delegation of legislative power to the officers
mentioned therein (Director of Animal Industry and Head of the National
Meat Commission) because they were given unlimited discretion in the
distribution of the property confiscated.
5. Read:
a.
b.
c.
d.
e.
f.
g.
h.

JMM Promotions vs. CA, 260 SCRA 319

ERMITA-MALATE HOTEL VS. MAYOR OF MANILA, July 31, 1967;
ICHONG VS. HERNANDEZ, 101 Phil. 1155
CHURCHILL VS. RAFFERTY, 32 Phil. 580
PEOPLE VS. POMAR, 46 Phil. 447
US VS. TORIBIO, 15 Phil. 85
VELASCO VS. VILLEGAS, February 13, 1983
ILOILO ICE & COLD STORAGE VS. MUNICIPAL COUNCIL, 24 Phil.
471
i. AGUSTIN VS. EDU, 88 SCRA 195
j. TAXICAB OPERATORS VS. BOT, 119 SCRA 597
k. BAUTISTA VS. JUINIO, 127 SCRA 329
A law prohibiting the use of Heavy and
Extra Heavy Vehicles on weekends and
holidays when there is energy crisis is a
valid police power measure.

21
MARY CONCEPCION-BAUTISTA VS. ALFREDO JUINIO, ET AL,
127 SCRA 329
Fernando, C.J.
Facts:
1. On May 31, 1979, President Marcos issued Letter of Instruction No.
869 prohibiting the use of private motor vehicles with H (Heavy Vehicles)
and EH (Extra Heavy Vehicles) on week-ends and holidays from 12:00
a.m. Saturday morning to 5:00 a.m. Monday morning, or 1:00 a.m. of the
holiday to 5:00 a.m. of the day after the holiday. Motor vehicles of the
following classifications are however, exempted:
1. S----service;
2. T----Truck;
3. DPL--Diplomatic;
4. CC---Consular Corps; and
5. TC---Tourist Cars
2. On June 11, 1979, the then Commissioner of Land Transportation,
ROMEO EDU issued Circular No. 39 imposing "the penalties of fine,
confiscation of vehicle and cancellation of registration on owners of the
above-specified found violating such letter of Instructions";
3. Bautista is questioning the constitutionality of the LOI and the
Implementing Circular on the grounds that:
a. The banning of H and EH vehicles is unfair, discriminatory, and
arbitrary and thus contravenes the EQUAL PROTECTION CLAUSE; and
b. The LOI denies the owners of H and EH vehicles of due
process, more specifically of their right to use and enjoy their private
property and of their freedom to travel and hold family gatherings,
reunions, outings on week-ends and holidays, while those not included in
the prohibition are enjoying unrestricted freedom;
c. The Circular violates the prohibition against undue delegation of
legislative power because the LOI does not impose the penalty of
confiscation.
HELD:
1. It must be pointed out that the LOI was promulgated to solve the
oil crisis which was besetting the country at that time. It was therefore a
valid police power measure to ensures the country's economy as a result of
spiralling fuel prices. In the interplay of Bautista's right to due process and
the exercise of police power by the State, the latter must be given leeway.
The police power is intended to promote public health, public morals,
public safety and general welfare.

22

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

violated is without basis. This is so because there is a valid classification
in this case. Definitely, Heavy and Extra-Heavy vehicles consume more
gasoline that the other kinds of vehicles and it is but proper to regulate the
use of those which consumes more gasoline. If all the owner of H and EH
vehicles are treated in the same fashion, or whatever restrictions cast on
some in the group is held equally binding on the rest, there is no violation
of the equal protection clause.
3. The penalty of "impounding" the vehicle as embodied in
Circular No. 39 has no statutory basis. Therefore, it is not valid being an
"ultra vires".
l. ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY OF
AGRARIAN REFORM, 175 SCRA 343
m. DECS VS. SAN DIEGO, 180 SCRA 533
n. VILLANUEVA VS. CASTANEDA, September 21, 1987
5-a. Not a valid exercise of police power
CITY GOVERNMENT OF QUEZON CITY VS. ERICTA, 122
SCRA 759
CHAPTER IIDUE PROCESS
Section 1---NO PERSON SHALL BE
DEPRIVED OF LIFE, LIBERTY OR
PROPERTY WITHOUT DUE PROCESS
OF LAW, NOR SHALL ANY PERSON
BE DENIED EQUAL PROTECTION OF
THE LAWS.
Kinds of Due Process:
a. substantive due process---requires the intrinsic validity of the law in
interfering with the rights of the person to life, liberty or property. In short,
it is to determine whether it has a valid governmental objective like for the
interest of the public as against mere particular class.
b. Procedural due process---one which hears before it condemns as pointed
out by Daniel Webster.
Due process is a law which hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial (Per Daniel Webster in the DARTMOUTH
COLLEGE CASE)
Due process have different requisites in:
1. Due process before judicial bodies or judicial due process;

23
2. Due process before administrative bodies;
3. Due process before the labor tribunals; and
4. Due process involving students.
If the proceeding is not covered by any of
the above, due process may not be
invoked if one was not given the right to
be heard.
Illustrative case:
DUE PROCESS
JOSE L. ATIENZA, JR., MATIAS V. DEFENSOR,
JR., RODOLFO G.VALENCIA, DANILO E. SUAREZ,
SOLOMON
R.
CHUNGALAO,
SALVACION
ZALDIVAR-PEREZ,
HARLIN
CAST-ABAYON,
MELVIN G.MACUSI and ELEAZAR P. QUINTO vs.
COMELEC, MANUEL ROXAS II, FRANKLIN
DRILON and J.R. NEREUS ACOSTA , G.R. No.
188920
ABAD, J.:
On July 5, 2005 respondent Franklin M. Drilon , then the president of the
Liberal Party (LP), announced his partys withdrawal of support for the
administration of President Gloria Macapagal-Arroyo. But petitioner Jose L.
Atienza, Jr., LP Chairman, and a number of party members denounced Drilons
move, claiming that he made the announcement without consulting his party.
On March 2, 2006 petitioner Atienza hosted a party conference to
supposedly discuss local autonomy and party matters but, when convened, the
assembly proceeded to declare all positions in the LPs ruling body vacant and
elected new officers, with Atienza as LP president. Respondent Drilon
immediately filed a petition with the Commission on Elections (COMELEC) to
nullify the elections. He claimed that it was illegal considering that the partys
electing bodies, the National Executive Council (NECO) and the National
Political Council (NAPOLCO), were not properly convened. Drilon also claimed
that under the amended LP Constitution, party officers were elected to a fixed
three-year term that was yet to end on November 30, 2007.
On the other hand, petitioner Atienza claimed that the majority of the LPs
NECO and NAPOLCO attended the March 2, 2006 assembly. The election of
new officers on that occasion could be likened to people power, wherein the LP
majority removed respondent Drilon as president by direct action. Atienza also
said that the amendments to the original LP Constitution, or the Salonga
Constitution, giving LP officers a fixed three-year term, had not been properly
ratified. Consequently, the term of Drilon and the other officers already ended on
July 24, 2006

24
On October 13, 2006, the COMELEC issued a resolution, partially granting
respondent Drilons petition. It annulled the March 2, 2006 elections and ordered
the holding of a new election under COMELEC supervision. It held that the
election of petitioner Atienza and the others with him was invalid since the
electing assembly did not convene in accordance with the Salonga Constitution.
But, since the amendments to the Salonga Constitution had not been properly
ratified, Drilons term may be deemed to have ended. Thus, he held the position
of LP president in a holdover capacity until new officers were elected.
Both sides of the dispute went to the Supreme Court to challenge the
COMELEC rulings. On April 17, 2007 a divided Court issued a resolution,
granting respondent Drilons petition and denying that of petitioner Atienza. The
Court held, through the majority, that the COMELEC had jurisdiction over the
intra-party leadership dispute; that the Salonga Constitution had been validly
amended; and that, as a consequence, respondent Drilons term as LP president
was to end only on November 30, 2007.
Subsequently, the LP held a NECO meeting to elect new party leaders
before respondent Drilons term expired. Fifty-nine NECO members out of the
87 who were supposedly qualified to vote attended. Before the election, however,
several persons associated with petitioner Atienza sought to clarify their
membership status and raised issues regarding the composition of the NECO.
Eventually, that meeting installed respondent Manuel A. Roxas II (Roxas) as the
new LP president.
On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo
G. Valencia, Danilo E. Suarez, Solomon R. Chungalao, Salvacion Zaldivar-Perez,
Harlin Cast-Abayon, Melvin G. Macusi, and Eleazar P. Quinto, filed a petition for
mandatory and prohibitory injunction before the COMELEC against respondents
Roxas, Drilon and J.R. Nereus O. Acosta, the party secretary general. Atienza, et
al. sought to enjoin Roxas from assuming the presidency of the LP, claiming that
the NECO assembly which elected him was invalidly convened. They questioned
the existence of a quorum and claimed that the NECO composition ought to have
been based on a list appearing in the partys 60th Anniversary Souvenir Program.
Both Atienza and Drilon adopted that list as common exhibit in the earlier cases
and it showed that the NECO had 103 members.
Petitioners Atienza, et al. also complained that Atienza, the incumbent party
chairman, was not invited to the NECO meeting and that some members, like
petitioner Defensor, were given the status of guests during the meeting.
Atienzas allies allegedly raised these issues but respondent Drilon arbitrarily
thumbed them down and railroaded the proceedings. He suspended the meeting
and moved it to another room, where Roxas was elected without notice to
Atienzas allies.
On the other hand, respondents Roxas, et al. claimed that Roxas election as
LP president faithfully complied with the provisions of the amended LP
Constitution. The partys 60th Anniversary Souvenir Program could not be used
for determining the NECO members because supervening events changed the

25
bodys number and composition. Some NECO members had died, voluntarily
resigned, or had gone on leave after accepting positions in the government.
Others had lost their re-election bid or did not run in the May 2007 elections,
making them ineligible to serve as NECO members. LP members who got
elected to public office also became part of the NECO. Certain persons of
national stature also became NECO members upon respondent Drilons
nomination, a privilege granted the LP president under the amended LP
Constitution. In other words, the NECO membership was not fixed or static; it
changed due to supervening circumstances.
Respondents Roxas, et al. also claimed that the party deemed petitioners
Atienza, Zaldivar-Perez, and Cast-Abayon resigned for holding the illegal election
of LP officers on March 2, 2006. This was pursuant to a March 14, 2006
NAPOLCO resolution that NECO subsequently ratified. Meanwhile, certain
NECO members, like petitioners Defensor, Valencia, and Suarez, forfeited their
party membership when they ran under other political parties during the May
2007 elections. They were dropped from the roster of LP members.
On June 18, 2009 the COMELEC issued the assailed resolution denying
petitioners Atienza, et al.s petition. It noted that the May 2007 elections
necessarily changed the composition of the NECO since the amended LP
Constitution explicitly made incumbent senators, members of the House of
Representatives, governors and mayors members of that body. That some lost or
won these positions in the May 2007 elections affected the NECO membership.
Petitioners failed to prove that the NECO which elected Roxas as LP president
was not properly convened.
As for the validity of petitioners Atienza, et al.s expulsion as LP members,
the COMELEC observed that this was a membership issue that related to
disciplinary action within the political party. The COMELEC treated it as an
internal party matter that was beyond its jurisdiction to resolve.
Without filing a motion for reconsideration of the COMELEC resolution,
petitioners Atienza, et al. filed this petition for certiorari under Rule 65.
ISSUE
Whether or not respondents
Roxas,
et
al.
violated
petitioners Atienza, et al.s
constitutional right to due
process
by
the
latters
expulsion from the party.
HELD:
Petitioners Atienza, et al. argue that their expulsion from the party is not a
simple issue of party membership or discipline; it involves a violation of their
constitutionally-protected right to due process of law. They claim that the

26
NAPOLCO and the NECO should have first summoned them to a hearing before
summarily expelling them from the party. According to Atienza, et al.,
proceedings on party discipline are the equivalent of administrative proceedings
and are, therefore, covered by the due process requirements laid down in Ang
Tibay v. Court of Industrial Relations.
But the requirements of administrative due process do not apply to the internal
affairs of political parties. The due process standards set in Ang Tibay cover
only administrative bodies created by the state and through which certain
governmental acts or functions are performed. An administrative agency or
instrumentality contemplates an authority to which the state delegates
governmental power for the performance of a state function. The
constitutional limitations that generally apply to the exercise of the states
powers thus, apply too, to administrative bodies
The constitutional limitations on the exercise of the states powers are
found in Article III of the Constitution or the Bill of Rights. The Bill of Rights,
which guarantees against the taking of life, property, or liberty without due
process under Section 1 is generally a limitation on the states powers in relation
to the rights of its citizens. The right to due process is meant to protect
ordinary citizens against arbitrary government action, but not from acts
committed by private individuals or entities. In the latter case, the specific
statutes that provide reliefs from such private acts apply. The right to due
process guards against unwarranted encroachment by the state into the
fundamental rights of its citizens and cannot be invoked in private
controversies involving private parties.
Although political parties play an important role in our democratic set-up
as an intermediary between the state and its citizens, it is still a private
organization, not a state instrument. The discipline of members by a political
party does not involve the right to life, liberty or property within the meaning of
the due process clause. An individual has no vested right, as against the state, to
be accepted or to prevent his removal by a political party. The only rights, if any,
that party members may have, in relation to other party members, correspond to
those that may have been freely agreed upon among themselves through their
charter, which is a contract among the party members. Members whose rights
under their charter may have been violated have recourse to courts of law for the
enforcement of those rights, but not as a due process issue against the government
or any of its agencies.
But even when recourse to courts of law may be made, courts will
ordinarily not interfere in membership and disciplinary matters within a political
party. A political party is free to conduct its internal affairs, pursuant to its
constitutionally-protected right to free association. In Sinaca v. Mula, the Court
said that judicial restraint in internal party matters serves the public interest by
allowing the political processes to operate without undue interference. It is also
consistent with the state policy of allowing a free and open party system to
evolve, according to the free choice of the people.

27
To conclude, the COMELEC did not gravely abuse its discretion when it
upheld Roxas election as LP president but refused to rule on the validity of
Atienza, et al.s expulsion from the party. While the question of party leadership
has implications on the COMELECs performance of its functions under Section
2, Article IX-C of the Constitution, the same cannot be said of the issue pertaining
to Atienza, et al.s expulsion from the LP. Such expulsion is for the moment an
issue of party membership and discipline, in which the COMELEC cannot
intervene, given the limited scope of its power over political parties.
5. Requisites of judicial due process.
a. BANCO ESPANOL VS. PALANCA, 37 Phil. 921
Requisites:
1. There must be an impartial court or tribunal clothed with judicial power to
hear and decide the matter before it;
2. Jurisdiction must be lawfully acquired over the person of the defendant or
over the property subject of the proceedings;
3. The defendant must be given the opportunity to be heard;
4. Judgment must be rendered only after lawful hearing.
a. GALMAN VS. PAMARAN (the 1st case)
b. IMELDA MARCOS VS. SANDIGANBAYAN, October 6, 1998
IMELDA R. MARCOS VS. SANDIGANBAYAN, G.R. No. 126995,
October 6, 1998
Purisima, J.
Facts:
1. On June 8, 1984, IMELDA MARCOS and JOSE DANS, as Chairman
and Vice Chairman of the Light Railway Transit Authority (LRTA)
entered into a Lease Contract with the Philippine General Hospital
Foundation (PGHFI) involving an LRTA property in Pasay City for
P102,760.00 per month for 25 years;
2. On June 27,1984, the PGHFI subleased the said property for P734,000.00
per month to the Transnational Construction Corporation represented by
one Ignacio Jumenez;
3. After petitioners husband was deposed as President of the Philippines,
she and Dans were charged of alleged violation of Section 3 [g] of RA
3019, otherwise known as the Anti-Graft and Corrupt Practices Act before
the Sandiganbayan;
4. After trial , the First Division of the Sandiganbayan failed to comply with
the legal requirement that all the 3 justices must be unanimous in its
Decision because Justice Garchitorena and Justice Jose Balajadia voted for
the conviction of both accused while Justice Narciso Atienza voted to
acquit them;

28
5. Thereafter, Justice Garchitorena as Presiding Justice issued Administrative
Order No. 288-93 constituting a Special Division of five and designating
Justices Augusto Amores and Cipriano del Rosario;
6. On September 21, 1993, Justice Amores wrote Justice Garchitorena that he
be given 15 days his Manifestation. On the same date, however, Justice
Garchitorena dissolved the division of 5 allegedly because he and Justice
Balajadia had agreed to the opinion of Justice del Rosario;
7. On September 24, 1993, a Decision was rendered convicting the
petitioner and Dans of violation of Sec. 3 [g] of RA 3019;
8. On June 29, 1998, the Third Division of the Supreme Court by a vote of 32 affirmed the conviction of the petitioner but acquitted DANS;
9. Petitioner then filed a Motion for Reconsideration and at the same time
prayed that her Motion be heard by the Supreme Court en banc claiming
that her right to due process of law, both substantive and procedural, was
violated:
a.

as a result of the fact that she was convicted as a result of the alleged
disparity of the rentals agreed upon with PGHFI and the subsequent sublease contract between PGHFI and Transnational Construction
Corporation; and
b. the First Division convicted her after Justice Garchitorena dissolved the
Special Division of 5 after a lunch in a Quezon City restaurant where they
agreed to convict her in one case and acquit her in her other cases. The
said meeting was attended by another justice who is not a member of the
First Division or the Special Division in violation of the Rules of the
Sandiganbayan which requires that sessions of the court shall be done only
in its principal office in Manila and that only justices belonging to the
division should join the deliberations.
Held:
The petitioner is hereby acquitted.
1. The great disparity between the rental price of the lease agreement
signed by the petitioner (P102,760.00 per month) and the sub-lease rental
(P734,000.00 per month) does not necessarily render the monthly rate of
P102,760.00 manifestly and grossly disadvantageous to the government in
the absence of any evidence using rentals of adjacent properties showing
that the rentals in the property subject of the lease agreement is indeed
very low. NO EVIDENCE WHATSOEVER WAS PRESENTED BY THE
PROSECUTION REGARDING THE RENTAL RATE OF ADJACENT
PROPERTIES.. As such, the prosecution failed to prove the guilt of the
petitioner reasonable doubt.
2. The court notes likewise the bias and prejudice of Presiding Justice
Garchitorena against the petitioner as shown by his leading, misleading
and baseless hypothetical questions of said justice to RAMON F.
CUERVO, witness for the petitioner. Said justice asked 179 questions to
the witness as against the prosecutor who cross-examined the witness and

29
asked 73. Said number of questions could no longer be described as
clarificatory questions. Another ground therefore for the acquittal of the
petitioner is that she was denied IMPARTIAL TRIAL before the
Sandiganbayan. This is one reason why the case could no longer be
remanded to the Sandiganbayan especially so that the other
Sandiganbayan Justices in the Special Division of 5 have retired. There is
therefore no compelling reason why the case should still be remanded to
the lower court when all the evidence are already with the Supreme Court.
(NOTE: The vote was 9-5 for Acquittal. CJ Narvasa, Justices Regalado,
Davide, Jr., Romero, and Panganiban voted for conviction while Justice
Vitug was the only Justice who voted for the return of the case to the
Sandiganbayan to allow the corrections of the perceived irregularities in
the proceedings below.)
c. DBP VS. CA, January 29, 1999 (Repeated failure of a party to present
evidence justifies the court to consider the case submitted for decision
and hold that the party has waived the right to present evidence)
d. MATUGUINA VS. CA, 263 SCRA 490
e. PEOPLE VS. CA, 262 SCRA 452
f. JAVIER VS. COMELEC, 144 SCRA 194
JAVIER VS. COMELEC
G.R. No.L- 68379-812, September 22, 1986
FACTS:
1.
The petitioner Evelio Javier and the private respondent Arturo
Pacificador were candidates in Antique for the Batasang Pambansa
election in May 1984;
2. Alleging serious anomalies in the conduct of the elections and the
canvass of the election returns, Javier went to the COMELEC to prevent
the impending proclamation of his rival;
3. On May 18, 1984, the Second Division of the COMELEC directed the
provincial board of canvassers to proceed with the canvass but to suspend
the proclamation of the winning candidate until further orders;
4. On June 7, 1984, the same Second Division ordered the board to
immediately convene and to proclaim the winner without prejudice to the
outcome of the petition filed by Javier with the COMELEC;
5. On certiorari with the S.C. the proclamation made by the Board of
Canvassers was set aside as premature, having been made before the lapse
of the 5 - day period of appeal, which the petitioner seasonably made;

30
6. On July 23, 1984 the Second Division itself proclaimed Pacificador
the elected assemblyman of Antique.
ISSUE:
Was the Second Division of the COMELEC, authorized to promulgate
its decision of July 23, 1984 proclaiming Pacificador the winner in the
election ?
APPLICABLE PROVISIONS OF THE CONSITUTION:
The applicable provisions of the 1973 Constitution are Art. XII-C, secs.
2 and 3, which provide:
"Section 2. Be the sole judge of all contests relating to the election,
returns and qualifications of all members of the Batasang Pambansa and
elective provincial and city officials."
"Section 3. The Commission on Elections may sit en banc or in
three divisions. All election cases may be heard and decided by
divisions except contests involving members of the Batasang
Pambansa, which shall be heard and decided en banc. Unless
otherwise provided by law, all election cases shall be decided within
ninety days from the date of their submission for decision."
CONTENTIONS OF THE PARTIES:
Petitioner:
The proclamation made by the Second Division is invalid because all
contests involving members of the Batasang Pambansa come under the
jurisdiction of the Commission on Elections en banc.
Respondents:
Only "contests" need to be heard and decided en banc, all other cases
can be - in fact, should be - filed with and decided only by any of the
three divisions.
There is a difference between "contests" and "cases" and also a
difference between "pre-proclamation controversies" and "election
protests". The pre-proclamation controversy between the petitioner and the
private respondent was not yet a contest at the time and therefore could be
validly heard by a mere division of the Commission on elections,
consonant with Sec. 3. The issue at that stage was still administrative and
could be resolved by a division.
HELD:

31
a. The S.C. decided to resolve the case even if the Batasang Pambansa
had already been abolished by the Aquino government, and even if Javier
had already died in the meantime. This was because of its desire for this
case to serve as a guidance for the future. Thus it said: "The Supreme
Court is not only the highest arbiter of legal questions but also the
conscience of the government. The citizen comes to us in quest of law but
we must also give him justice. The two are not always the same. There are
times when we cannot grant the latter because the issue has been settled
and decision is no longer possible according to law. But there are also
times when although the dispute has disappeared, as in this case, it
nevertheless cries out to be resolved. Justice demands that we act, then,
not only for the vindication of the outraged right, though gone, but also for
the guidance of and as a restraint upon the future."
b. The S.C. held on the main issue that in making the COMELEC the
sole judge of all contests involving the election, returns and qualifications
of the members of the Batasang Pambansa and elective provincial and city
officials, the Constitution intended to give it full authority to hear and
decide these cases from beginning to end and on all matter related thereto,
including those arising before the proclamation of the winners.
The decision rendered by the Second Division alone was therefore set
aside as violative of the Constitution. The case should have been decided
en banc.
c. Pre-proclamation controversies became known and designated as such
only because of Sec. 175 of the 1978 Election Code. The 1973
Constitution could not have therefore been intended to have divided
contests between pre and post proclamation when that Constitution was
written in 1973.
d. The word "contests" should not be given a restrictive meaning; on the
contrary, it should receive the widest possible scope conformably to the
rule that the words used in the Constitution should be interpreted liberally.
As employed in the 1973 Constitution, the term should be understood as
referring to any matter involving the title or claim of title to an elective
office, made before or after the proclamation of the winner, whether or not
the contestant is claiming the office in dispute.
e. There was also a denial of due process. One of the members of the
Second Division, Commissioner Jaime Opinion was a law partner of
Pacificador. He denied the motion to disqualify him from hearing the case.
The Court has repeatedly and consistently demanded "the cold neutrality
of an impartial judge" as the indispensable imperative of due process.
To bolster that requirement we have held that the judge must not only be
impartial but must also appear to be impartial as an added assurance to the
parties that his decision will be just.
g. AZUL VS. CASTRO, 133 SCRA 271

32
h. PADERANGA VS. AZURA, 136 SCRA 266
i. DAVID VS. AQUILIZAN, 94 SCRA 707
j. LORENZANA VS. CAYETANO, 78 SCRA 485 (respondent was not a
party to the ejectment case) so to enforce the decision on her violates
her right to due process of law
k. ZAMBALES CHROMITE MINING VS. CA, 94 SCRA 261
l. ANZALDO VS. CLAVE, 119 SCRA 353
m. SINGSON VS. NLRC, 273 SCRA 258
n. ANZALDO VS. CLAVE, 119 SCRA 353
o. MAYOR ALONTE VS. JUDGE SAVELLANO, 287 SCRA 245
MAYOR BAYANI ALONTE VS. JUDGE SAVELLANO, 287
SCRA 245
Vitug, J.
Mayor Alonte of Binan, Laguna was charged of rape before Branch
25, RTC of Laguna. However, as a result of a petition for a transfer of
venue filed by the prosecution and granted by the SC, his case was
transferred to RTC Branch 53, Manila, presided over by the respondent
judge.
After the petitioners arraignment, the prosecution submitted an
AFFIDAVIT OF DESISTANCE signed by the private complainant
JUVIE-LYN PUNONGBAYAN where she prayed for the withdrawal of
the case because she is no longer interested in pursuing the same with no
intention of re-filing the said case in the future.
Pending resolution of the said motion to withdraw, the petitioner
filed a motion for bail. The same was not resolved despite several motions
filed by the petitioner to resolve the same.
On December 17, 1997, counsel for the petitioner, ATTY. PHILIP
SIGFRID FORTUN, received a notice from the respondent judge
notifying him of the promulgation of the decision in this case despite the
fact that the prosecution and the defense have not presented their evidence
in court.
On December 18, 1997, the respondent judge issued a Decision
convicting the petitioner of rape and sentenced to suffer a penalty of
RECLUSION PERPETUA.
Issue:
Whether or not the petitioner was denied his right to due process of
law.
Held:

33
In order that an accused in a criminal proceedings is deemed to
have been given the right to due process of law, the following requisites
must be complied with before a decision is rendered:
1. the court or tribunal trying the case is clothed with jurisdiction to hear and
determine the matter before it;
2. that jurisdiction was lawfully acquired by it over the person of the
accused;
3. that the accused is given the opportunity to be heard; and
4. that judgment is rendered only upon lawful hearing (PEOPLE VS.
DAPITAN, 197 SCRA 378)
The act of the respondent judge in rendering a decision without
even giving the petitioner the right to adduce evidence in his behalf is a
gross violation of his right to due process of law. The Decision rendered is
NULL AND VOID for want of due process.
As long as there is a notice to a party in the
hearing of a motion on the custody of their
children in a Declaration of Nullity of
Marriage case, there is no violation of the
right to due process.
SUSIE CHAN-TAN vs. JESSE TAN, G.R. No. 167139,
February 25, 2010
ISSUE:
Petitioner raises the question of whether the 30 March 2004 decision and
the 17 May 2004 resolution of the trial court giving custody to their children have
attained finality despite the alleged denial of due process since she was not
present during the hearing.
HELD:
Petitioner contends she was denied due process when her counsel failed to file
pleadings and appear at the hearings for respondents omnibus motion to amend
the partial judgment as regards the custody of the children and the properties in
her possession. Petitioner claims the trial court issued the 17 May 2004 resolution
relying solely on the testimony of respondent.
Respondent stresses neither
petitioner nor her counsel appeared in court at the hearings on respondent's
omnibus motion or on petitioners motion to dismiss.
We also ruled in Tuason that notice sent to the counsel of record is binding
upon the client and the neglect or failure of the counsel to inform the client of an
adverse judgment resulting in the loss of the latters right to appeal is not a ground
for setting aside a judgment valid and regular on its face.

34
Further, petitioner cannot claim that she was denied due process. While she
may have lost her right to present evidence due to the supposed negligence of her
counsel, she cannot say she was denied her day in court. Records show petitioner,
through counsel, actively participated in the proceedings below, filing motion
after motion. Contrary to petitioners allegation of negligence of her counsel, we
have reason to believe the negligence in pursuing the case was on petitioners end,
as may be gleaned from her counsels manifestation dated 3 May 2004:
Undersigned Counsel, who appeared for petitioner, in the
nullity proceedings, respectfully informs the Honorable Court that
she has not heard from petitioner since Holy Week. Attempts to
call petitioner have failed.
Undersigned counsel regrets therefore that she is unable to respond
in an intelligent manner to the Motion (Omnibus Motion) filed by
respondent.
Clearly, despite her counsels efforts to reach her, petitioner showed utter
disinterest in the hearings on respondents omnibus motion seeking, among
others, custody of the children. The trial judge was left with no other recourse but
to proceed with the hearings and rule on the motion based on the evidence
presented by respondent. Petitioner cannot now come to this Court crying denial
of due process.
The right of the accused to due process of
law was violated when the judge issued a
warrant for her arrest even though she
has not received any notice for her
arraignment before the Municipal Trial
Court of Baguio City because the notice
was actually sent to her through the Chief
of Police of Quezon City.
NORYN S. TAN VS. JUDGE MARIA CLARITA CASUGATABIN, A.M. No. MTJ-09-1729, January 20, 2009
AUSTRIA-MARTINEZ, J.:
FACTS:
Noryn S. Tan (complainant) filed a Complaint dated April 2, 2007 against Judge
Maria Clarita Casuga-Tabin (respondent) of the Municipal Trial Court in Cities (MTCC),
Branch 4, Baguio City for denial of due process relative to Criminal Case No. 118628.
Complainant avers: On November 9, 2006, the Philippine National Police (PNP)
Quezon City Police District (QCPD) served her a warrant of arrest dated October 13, 2006,
issued by the MTCC Baguio City, Branch 4, presided by respondent, relative to Criminal
Case No. 118628 for alleged violation of Batas Pambansa Blg. 22. It was only then that
she learned for the first time that a criminal case was filed against her before the court. She

35
was detained at the Quezon City Hall Complex Police Office and had to post bail of
P1,000.00 before the Office of the Executive Judge of the Regional Trial Court (RTC) of
Quezon City for her temporary release. Upon verification, she learned that respondent
issued on August 8, 2006 an Order directing her to appear before the court on October 10,
2006 for arraignment. It was sent by mail to PNP Quezon City for service to her.
However, she did not receive any copy of the Order and up to the present has not seen the
same; hence, she was not able to attend her arraignment. She also found out that there was
no proof of service of the Order or any notice to her of the arraignment. This
notwithstanding, respondent issued a warrant for her arrest. Complainant alleges that she
was deeply aggrieved and embarrassed by the issuance of the warrant for her arrest despite
the fact that she was never notified of her arraignment. Complainant prayed that the
appropriate investigation be conducted as to the undue issuance of a warrant for her arrest.
In her Comment dated July 5, 2007, respondent answered: She issued the warrant
of arrest because when the case was called for appearance, the complainant, as accused
therein, failed to appear. Prior to the issuance of the warrant of arrest, her staff sent by
registered mail the court's Order dated August 8, 2006 addressed to complainant through
the Chief of Police, PNP, 1104, Quezon City directing complainant to appear on October
10, 2006 at 8:30 a.m. for the arraignment and preliminary conference in Criminal Case No.
118628, as proven by Registry Receipt No. 0310. It is true that the return on the court's
Order dated August 8, 2006 had not yet been made by the QC Police on or before October
10, 2006. Nonetheless, she issued the warrant of arrest in good faith and upon the
following grounds: (a) under Sec. 3 of Rule 131 of the Rules of Court, the court was
entitled to presume that on October 10, 2006, after the lapse of a little over two months,
official duty had been regularly performed and a letter duly directed and mailed had been
received in the regular course of mail; and (b) Sec. 12 of the 1983 Rule on Summary
Procedure in Special Cases provides that bail may be required where the accused does not
reside in the place where the violation of the law or ordinance was committed. The
warrant of arrest she issued was meant to implement this provision, which was not repealed
by the 1991 Revised Rule on Summary Procedure, since complainant is a resident of
Quezon City and not of Baguio City. If her interpretation was erroneous, she (respondent)
believes that an administrative sanction for such error would be harsh and unsympathetic.
She has nothing personal against complainant and did not want to embarrass or humiliate
her. She issued the warrant in the honest belief that her act was in compliance with the
rules. She prays that the case against her be dismissed and that a ruling on the
interpretation of Secs. 10 & 12, of the 1983 Rule on Summary Procedure in Special Cases,
in relation to Sec. 16 of the 1991 Revised Rule on Summary Procedure be made for the
guidance of the bench and bar.
HELD:
Whenever a criminal case falls under the Summary Procedure, the general rule is
that the court shall not order the arrest of the accused, unless the accused fails to appear
whenever required. This is clearly provided in Section 16 of the 1991 Revised Rule on
Summary Procedure which states:
Sec. 16. Arrest of accused. - The court shall not order the
arrest of the accused except for failure to appear whenever required.

36
Release of the person arrested shall either be in bail or on recognizance by
a responsible citizen acceptable to the court. (Emphasis supplied)
In this case, respondent claims that the issuance of a warrant for the arrest of
complainant was justified, since complainant failed to appear during the arraignment in
spite of an order requiring her to do so. Respondent admits, however, that a copy of the
Order dated August 8, 2006, was sent to complainant through the Chief of Police, PNP,
1104, Quezon City.
While it is true that the Rules of Court provides for presumptions, one of which is
that official duty has been regularly performed, such presumption should not be the sole
basis of a magistrate in concluding that a person called to court has failed to appear as
required, which in turn justifies the issuance of a warrant for her arrest, when such notice
was not actually addressed to her residence but to the police in her city. So basic and
fundamental is a person's right to liberty that it should not be taken lightly or brushed aside
with the presumption that the police through which the notice had been sent, actually
served the same on complainant whose address was not even specified.
The Court has held that a judge commits grave abuse of authority when she hastily
issues a warrant of arrest against the accused in violation of the summary procedure rule
that the accused should first be notified of the charges against him and given the
opportunity to file his counter-affidavits and countervailing evidence .
Hence, complainants right to due process was violated.
Considering that this is respondent's first administrative infraction in her more than
8 years of service in the judiciary, which serves to mitigate her liability, the Court holds the
imposition of a fine in the amount of P10,000.00 to be proper in this case.
6. Procedural due process before administrative bodies
a. TIBAY VS. CIR, 69 Phil. 635
Requisites:
a.
b.
c.
d.
e.

the right to a hearing which includes the right to present evidence;

the tribunal must consider the evidence presented;
the decision must have something to support itself;
the evidence must be substantial;
the decision must be based on the evidence presented during the
hearing;
f. the tribunal or body must act on its own independent consideration of
the law or facts;
g. the board or body shall in all controversial questions, render its
decision in such a manner that the parties to the proceedings can
know the various issues involved.
b. AMERICAN TOBACCO VS. DIRECTOR, 67 SCRA 287

37
c. MANILA ELECTRIC COMPANY VS. NLRC, 263 SCRA 531
d. DELGADO VS. CA, November 10, 1986
If an accused was represented by a non-lawyer during the trial
(though she thought that he is a lawyer), her right to due process was
violated and therefore entitled to a new trial.
e. PEDRO CONSULTA VS. PEOPLE, G.R. No. 179462, February 12,
2009
ISSUE:
Whether or not appellant was denied due process having been represented
by a fake lawyer during arraignment, pre-trial and presentation of
principal witnesses for the prosecution.
HELD:
On the matter of accused-appellants claim of having been denied
due process, an examination of the records shows that while accusedappellant was represented by Atty. Jocelyn P. Reyes, who seems not a
lawyer, during the early stages of trial, the latter withdrew her appearance
with the conformity of the former as early as July 28, 2000 and
subsequently, approved by the RTC in its Order dated August 4, 2000.
Thereafter, accused-appellant was represented by Atty. Rainald C. Paggao
from the Public Defenders (Attorneys) Office of Makati City. Since the
accused-appellant was already represented by a member of the Philippine
Bar who principally handled his defense, albeit unsuccessfully, then he
cannot now be heard to complain about having been denied of due
process.
That appellants first counsel may not have been a member of the bar does not
dent the proven fact that appellant prevented Nelia and company from proceeding to their
destination. Further, appellant was afforded competent representation by the Public
Attorneys Office during the presentation by the prosecution of the medico-legal officer
and during the presentation of his evidence. People v. Elesterio1[4] enlightens:
As for the circumstance that the defense counsel turned out later
to be a non-lawyer, it is observed that he was chosen by the accused
himself and that his representation does not change the fact that Elesterio
was undeniably carrying an unlicensed firearm when he was arrested. At
any rate, he has since been represented by a member of the Philippine bar,
who prepared the petition for habeas corpus and the appellants brief.
7. Procedural due process in disciplinary actions against students
Academic freedom; due process in disciplinary actions involving students
1

[4]

G.R. No. 63971, May 9, 1989, 173 SCRA 243, 249.

38

DE LA SALLE UNIVERSITY VS. COURT OF APPEALS,

HON.WILFREDO D. REYES, in his capacity as Presiding Judge of
Branch 36, Regional Trial Court of Manila, THE COMMISSION ON
HIGHER EDUCATION, THE DEPARTMENT OF EDUCATION
CULTURE AND SPORTS, ALVIN AGUILAR, JAMES PAUL
BUNGUBUNG, RICHARD REVERENTE and ROBERTO VALDES,
JR., G.R. No. 127980, December 19, 2007
REYES, R.T., J.:
THE FACTS:
PRIVATE respondents Alvin Aguilar, James Paul Bungubung,
Richard Reverente and Roberto Valdes, Jr. are members of Tau Gamma
Phi Fraternity who were expelled by the De La Salle University (DLSU)
and College of Saint Benilde (CSB) Joint Discipline Board because of
their involvement in an offensive action causing injuries to petitioner
James Yap and three other student members of Domino Lux Fraternity.
The mauling incidents were a result of a fraternity war. The
victims, namely: petitioner James Yap and Dennis Pascual, Ericson Cano,
and Michael Perez, are members of the Domino Lux Fraternity, while
the alleged assailants, private respondents Alvin Aguilar, James Paul
Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of
Tau Gamma Phi Fraternity, a rival fraternity.
The next day, March 30, 1995, petitioner Yap lodged a complaint
with the Discipline Board of DLSU charging private respondents with
direct assault. Similar complaints were also filed by Dennis Pascual and
Ericson Cano against Alvin Lee and private respondents Valdes and
Reverente. Thus, cases entitled De La Salle University and College of St.
Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung (ABPSM/9234403), Robert R. Valdes, Jr. (BS-BS-APM/9235086), Alvin Lee
(EDD/9462325), Richard Reverente (AB-MGT/9153837) and Malvin A.
Papio (AB-MGT/9251227) were docketed as Discipline Case No. 94953-25121.
The Director of the DLSU Discipline Office sent separate notices
to private respondents Aguilar, Bungubung and Valdes, Jr. and Reverente
informing them of the complaints and requiring them to answer. Private
respondents filed their respective answers.
Said notices issued by De La Salle Discipline Board uniformly
stated as follows:

39
Please be informed that a joint and expanded Discipline Board
had been constituted to hear and deliberate the charge against you for
violation of CHED Order No. 4 arising from the written complaints of
James Yap, Dennis C. Pascual, and Ericson Y. Cano.
You are directed to appear at the hearing of the Board scheduled
on April 19, 1995 at 9:00 a.m. at the Bro. Connon Hall for you and your
witnesses to give testimony and present evidence in your behalf. You may
be assisted by a lawyer when you give your testimony or those of your
witnesses.
During the proceedings before the Board on April 19 and 28, 1995,
private respondents interposed the common defense of alibi. No fullblown hearing was conducted nor the students allowed to cross-examine
the witnesses against them.
On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a
Resolution finding private respondents guilty. They were meted the
supreme penalty of automatic expulsion pursuant to CHED Order No. 4.
The dispositive part of the resolution reads:
WHEREFORE, considering all the foregoing, the Board finds
respondents ALVIN AGUILAR (AB-BSM/9152105), JAMES PAUL
BUNGUBUNG (AB-PSM/9234403), ALVIN LEE (EDD/94623250) and
RICHARD V. REVERENTE (AB-MGT/9153837) guilty of having
violated CHED Order No. 4 and thereby orders their automatic expulsion.
In the case of respondent MALVIN A.
MGT/9251227), the Board acquits him of the charge.

PAPIO

(AB-

I SSUE
Were private respondents accorded due process of law because
there was no full-blown hearing nor were they allowed to cross-examine
the witnesses against them?
H E L D:
Private respondents right to due process of law was not violated.
In administrative cases, such as investigations of students
found violating school discipline, [t]here are withal minimum
standards which must be met before to satisfy the demands of
procedural due process and these are: that (1) the students must be
informed in writing of the nature and cause of any accusation against
them; (2) they shall have the right to answer the charges against them and
with the assistance if counsel, if desired;
(3) they shall be informed of
the evidence against them; (4) they shall have the right to adduce evidence
in their own behalf; and (5) the evidence must be duly considered by the

40
investigating committee or official designated by the school authorities to
hear and decide the case.
Where a party was afforded an opportunity to participate in the
proceedings but failed to do so, he cannot complain of deprivation of due
process. Notice and hearing is the bulwark of administrative due process,
the right to which is among the primary rights that must be respected even
in administrative proceedings. The essence of due process is simply an
opportunity to be heard, or as applied to administrative proceedings, an
opportunity to explain ones side or an opportunity to seek reconsideration
of the action or ruling complained of. So long as the party is given the
opportunity to advocate her cause or defend her interest in due course, it
cannot be said that there was denial of due process.
A formal trial-type hearing is not, at all times and in all instances,
essential to due process it is enough that the parties are given a fair and
reasonable opportunity to explain their respective sides of the controversy
and to present supporting evidence on which a fair decision can be based.
To be heard does not only mean presentation of testimonial evidence in
court one may also be heard through pleadings and where the
opportunity to be heard through pleadings is accorded, there is no denial
of due process.
Private respondents were duly informed in writing of the charges against
them by the DLSU-CSB Joint Discipline Board through petitioner Sales.
They were given the opportunity to answer the charges against them as
they, in fact, submitted their respective answers. They were also informed
of the evidence presented against them as they attended all the hearings
before the Board. Moreover, private respondents were given the right to
adduce evidence on their behalf and they did. Lastly, the Discipline Board
considered all the pieces of evidence submitted to it by all the parties
before rendering its resolution in Discipline Case No. 9495-3-25121.
Private respondents cannot claim that they were denied due
process when they were not allowed to cross-examine the witnesses
against them. This argument was already rejected in Guzman v. National
University] where this Court held that x x x the imposition of disciplinary
sanctions requires observance of procedural due process. And it bears
stressing that due process in disciplinary cases involving students does not
entail proceedings and hearings similar to those prescribed for actions and
proceedings in courts of justice. The proceedings in student discipline
cases may be summary; and cross examination is not, x x x an essential
part thereof.
GUZMAN VS. NATIONAL UNIVERSITY
G.R. No. L-68288, July 11, 1986
FACTS:

41

Petitioners who are students of the National University were barred

from enrolment. The school claims that their scholastic standing is poor
and that they have been involved in activities that have disrupted classes
and had conducted mass actions without the required permits.
HELD:
a. It is apparent that despite the accusations of alleged violations hurled
by the school against the petitioners, the fact is that it had never conducted
proceedings of any sort to determine whether or not petitioners-students
had indeed led or participated "in activities within the university premises,
conducted without prior permit from school authorities, that disturbed or
disrupted classes therein".
Also apparent is the omission of respondents to cite any duly published
rule of theirs by which students may be expelled or refused re-enrollment
for poor scholastic standing.
b. Under the Education Act of 1982, students have the right "to freely
choose their field of study subject to existing curricula and to continue
their course therein up to graduation, EXCEPT in case of academic
deficiency, or violation of disciplinary regulations."
The petitioner were denied of this right, and were being disciplined
without due process, in violation of the admonition in the Manual of
Regulations for Private Schools that "no penalty shall be imposed upon
any student except for cause as defined in *** (the) Manuel and/or in the
school rules and regulations as duly promulgated and only after due
investigation shall have been conducted. It has already been held in
Berina vs. Philippine Maritime Institute, 117 SCRA 581, that it is illegal of
a school to impose sanctions on students without conducting due
investigation.
c. Of course, all schools have the power to adopt and enforce its rules. In
fact the maintenance of good school discipline is a duty specifically
enjoined on every private school. The Manual of Regulations for Private
Schools provides that:
"* * The school rules governing discipline and the corresponding
sanctions therefor must be clearly specified and defined in writing and
made known to the students and/or their parents or guardians. Schools
shall have the authority and prerogative to promulgate such rules and
regulations as they may deem necessary from time to time effective as of
the date of their promulgation unless otherwise specified."
d.
The imposition of disciplinary sanctions requires observance of
procedural due process. Due process in disciplinary cases involving
students :

42

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

for actions and proceedings in court of justice;
b. the proceedings may be summary;
c. cross-examination is not an essential part thereof.
But the S.C. said that the following minimum standards must be met to
satisfy the demands of procedural due process:
1. the students must be informed in writing of the nature and cause of
any accusation against them;
2. they shall have the right to answer the charges against them, with
the assistance of counsel;
3. they shall be informed of the evidence against them;
4. they shall have the right to adduce evidence in their own behalf;
5.
the evidence must be duly considered by the investigating
committee or official designated by the school authorities to hear and
decide the case.
a. BERINA VS. PMI, September 30, 1982
Due process in the dismissal of employees
Requisites of Due Process before the NLRC
1. Notice; and
2. Hearing
a.
b.
c.
d.
e.
f.
g.

MGG Marine Services vs. NLRC, 259 SCRA 664

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

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

process
a. CASUELA VS. OFFICE OF THE OMBUDSMAN, 276 SCRA 635
b. CORDENILLO VS. EXECUTIVE SECRETARY, 276 SCRA 652
9. In administrative proceedings, does due process require that [1] a party be
assisted by counsel and [2] be able to cross-examine the witnesses?

43
LUMIQUED VS. EXENEA, 282 SCRA 125
There is no law, whether the Civil Service Act or the
Administrative Code of 1987, which provides that a respondent in an
administrative case should be assisted by counsel in order that the
proceedings therein is considered valid. Not only, that, petitioner herein
was given the opportunity several times to engage the services of a lawyer
to assist him but he confidently informed the investigators that he could
protect himself.
Administrative Due Process before
Civil Service Commission does
require
cross-examination
of
complainant and his witnesses by
respondent.

the
not
the
the

ATTY. ROMEO ERECE VS. LYN MACALINGAY, ET AL., G.R. No.

166809, April 22, 2008
THE FACTS:
Petitioner is the Regional Director of the Commission on Human
Rights (CHR) Region I, whose office is located in San Fernando City, La
Union. Respondent employees of the CHR Region I filed an AffidavitComplaint dated October 2, 1998 against petitioner alleging that he denied
them the use of the office vehicle assigned to petitioner, that petitioner still
claimed transportation allowance even if he was using the said vehicle,
and that he certified that he did not use any government vehicle, when in
fact he did, in order to collect transportation allowance.
Respondent filed his answer denying the allegations against him.
After a fact-finding investigation, the CSC Proper in CSC
Resolution No. 99-1360 dated July 1, 1999 charged petitioner with
Dishonesty and Grave Misconduct for using a government vehicle in spite
of his receipt of the monthly transportation allowance and for certifying
that he did not use any government vehicle, when in fact, he did, in order
to receive the transportation allowance.
Pertinent portions of the formal charge read:
1.
That despite the regular receipt of Erece of his monthly
Representation and Transportation Allowance (RATA) in the amount of
P4,000.00, he still prioritizes himself in the use of the office vehicle
(Tamaraw FX) in spite of the directive from the Central Office that he
cannot use the service vehicle for official purposes and at the same time
receive his transportation allowance;

44
2.
That Erece did not comply with the directive of the Central
Office addressed to all Regional Human Rights Directors, as follows: to
regularize your receipt of the transportation allowance component of the
RATA to which you are entitled monthly, you are hereby directed to
immediately transfer to any of your staff, preferably one of your lawyers,
the memorandum receipt of the vehicle(s) now still in your name;
3.
That he certified in his monthly liquidation of his RATA
that he did not use any government vehicle for the corresponding month,
which is not true because he is the regular user of the government vehicle
issued to CHR-Region I.
The foregoing facts and circumstances indicate that government
service has been prejudiced by the acts of Erece.
WHEREFORE, Romeo L. Erece is hereby formally charged with
Dishonesty and Grave Misconduct. Accordingly, he is given five (5) days
from receipt hereof to submit his Answer under oath and affidavits of his
witnesses, if any, to the Civil Service Commission-Cordillera
Administrative Region (CSC-CAR). On his Answer, he should indicate
whether he elects a formal investigation or waives his right thereto. Any
Motion to Dismiss, request for clarification or Bills of Particulars shall not
be entertained by the Commission. Any of these pleadings interposed by
the respondent shall be considered as an Answer and shall be evaluated as
such. Likewise, he is advised of his right to the assistance of counsel of
his choice.2[4]
After a formal investigation of the case, the CSC issued Resolution
No. 020124, dated January 24. 2002, finding petitioner guilty of
dishonesty and conduct prejudicial to the best interest of the service and
penalizing him with dismissal from the service.
Petitioner filed a petition for review of the CSC Resolution with
the CA.
In the Decision promulgated on January 7, 2005, the CA upheld
the CSC Resolution, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the petition is DENIED
and the assailed Resolutions of the Civil Service Commission are hereby
AFFIRMED.
Hence, this petition.
I S S U E:

2[4]

Id. at 35-36.

45
Petitioner raised the issue of violation of his right to due process
because he was denied the right to cross-examine the respondents on their
affidavit-complaint.
H E L D:
Petitioner contends that he was denied due process as he was not
afforded the right to cross-examine his accusers and their witnesses. He
stated that at his instance, in order to prevent delay in the disposition of
the case, he was allowed to present evidence first to support the
allegations in his Counter-Affidavit. After he rested his case, respondents
did not present their evidence, but moved to submit their position paper
and formal offer of evidence, which motion was granted by the CSC over
his (petitioners) objection. Respondents then submitted their Position
Paper and Formal Offer of Exhibits.
Petitioner submits that although he was allowed to present
evidence first, it should not be construed as a waiver of his right to crossexamine the complainants. Although the order of presentation of evidence
was not in conformity with the procedure, still petitioner should not be
deemed to have lost his right to cross-examine his accusers and their
witnesses. This may be allowed only if he expressly waived said right.
The Court agrees with the CA that petitioner was not denied due
process when he failed to cross-examine the complainants and their
witnesses since he was given the opportunity to be heard and present his
evidence. In administrative proceedings, the essence of due process is
simply the opportunity to explain ones side.
Velez v. De Vera it was held that :
Due process of law in administrative cases is not identical with
judicial process for a trial in court is not always essential to due process.
While a day in court is a matter of right in judicial proceedings, it is
otherwise in administrative proceedings since they rest upon different
principles. The due process clause guarantees no particular form of
procedure and its requirements are not technical. Thus, in certain
proceedings of administrative character, the right to a notice or hearing are
not essential to due process of law. The constitutional requirement of due
process is met by a fair hearing before a regularly established
administrative agency or tribunal. It is not essential that hearings be had
before the making of a determination if thereafter, there is available trial
and tribunal before which all objections and defenses to the making of
such determination may be raised and considered. One adequate hearing
is all that due process requires. . . .
The right to cross-examine is not an indispensable aspect of
due process. Nor is an actual hearing always essential. . . .

46
The dismissal of the petitioner from the government is valid.
There is violation of the right to due process
of law if a party he is declared as having
waived the right to file his answer despite
improper service of summons.
DATUPAX
MANGUDADATU
VS.
HOUSE
OF
REPRESENTATIVES ELECTORAL TRIBUNAL (HRET), G.R. No.
179813, December 18, 2008
LEONARDO-DE CASTRO, J.:
Datu Pax Pakung S. Mangudadatu (petitioner) and Angelo O.
Montilla (private respondent) were congressional candidates for the First
District of Sultan Kudarat during the May 14, 2007 national elections.
Petitioner won by 17,451 votes and was proclaimed on May 22, 2007 by
the Provincial Board of Canvassers as the duly elected Representative of
the said congressional district. On May 31, 2007, respondent filed with the
HRET a Petition of Protest (Ad Cautelam)3[4] contesting the results of the
elections and the proclamation of petitioner. On June 14, 2007, the
Secretary of the HRET caused the service of summons4[5] upon petitioner
through registered mail at Purok Losaria,5[6] Tamnag (Poblacion),
Lutayan, Sultan Kudarat, requiring petitioner to file an Answer to the
protest within ten (10) days from receipt thereof.

On July 11, 2007, the HRET received the Registry Return Receipt
Card, showing that a certain Aileen R. Baldenas 7[8] (Baldenas) received
the summons on June 27, 2007. On August 16, 2007, the HRET issued
Resolution No. 07-1798[9] which noted the aforementioned Registry Return
Receipt Card and that despite the fact that 43 days from June 27, 2007 had
passed since Baldenas received the summons, petitioner had not filed an
answer in accordance with Rule 279[10] of the 2004 HRET Rules. In the
same Resolution, the HRET considered petitioner to have entered a
general denial of the allegations of the protest.
6[7]

[4]

[5]

6
7

8
9

Id., pp. 41-76.

Id., p. 77.
[6]
The assailed Resolutions state Loria but the Summons and Registry Return Receipt Card
correctly state Losaria.
[7]
Rollo, p. 78.
[8]
The assailed Resolutions state Baldena; it should be Baldenas based on the Registry
Return Receipt Card.
[9]
See Note 2.
[10]
RULE 27. Failure to Answer; Effect. If no answer is filed to the protest, counter-protest, or
the petition for quo warranto within the period fixed in these Rules, a general denial shall be
deemed to have been entered.

47
In an Order dated August 17, 2007, the HRET set the preliminary
conference on September 27, 2007 at 11:00 a.m.

Meanwhile, petitioner informally learned of respondents protest,

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

On September 10, 2007, petitioner filed a Motion to

Reconsider10[11] Resolution No. 07-179 and Motion to Admit Answer with
Counter-Protest, alleging that he never received the summons issued by
the HRET. In his affidavit11[12] attached to the motion, petitioner denied
that Baldenas was a member of his household or his employee. He further
claimed that she was not authorized to receive any important documents
addressed to him. And assuming that he had authorized her, the summons
received by her was never brought to his attention.

On September 19, 2007, the HRET issued Resolution No. 0730012[13] denying for lack of merit.

Hence, this petition.

Petitioner filed the instant petition imputing grave abuse of

discretion amounting to lack of jurisdiction on the part of the HRET for
issuing Resolution Nos. 07-179 and 07-300. He also prayed for a
temporary restraining order and/or a writ of preliminary injunction for this
Court to enjoin the HRET from further proceeding with HRET Case
No.07-021.
Petitioner contended that the HRET never acquired
jurisdiction over his person because of the absence of a valid service of
summons. He argued that a substitute service of summons is made only
when the defendant cannot be served personally at a reasonable time after
efforts to locate him have failed. 13[14] In his case, since the process
servers return failed to show on its face the impossibility of personal
service, then the substituted service was improper and invalid.

10

[11]

11

[12]

Rollo, pp. 26-37.

Id., p. 30.
[13]
12
See Note 3.
13[14]
Rollo, p.12.

48
In his comment, respondent countered that the HRET did not
commit grave abuse of discretion in issuing Resolution Nos. 07-179 dated
August 16, 2007 and 07-300 dated September 19, 2007. He argued that
Rule 22 of the 2004 HRET Rules merely states that the Secretary of the
Tribunal shall issue the corresponding summons to the protestee or
respondent, as the case may be. He posited then that the intent of the
HRET in not expressly specifying personal service of summons on the
protestee or respondent was to give it a reasonable discretion or leeway in
serving the summons by other means such as registered mail. Thus,
service of summons on petitioner through registered mail did not violate
Rule 22 of the 2004 HRET Rules. Further, respondent claimed that Rule
14, Sections 6 and 7 of the Rules of Court were inconsistent with Rule 22
of the 2004 HRET Rules and therefore should not be given suppletory
application to HRET proceedings.

HELD:

Rule 22 of the 2004 HRET Rules provides:

RULE 22. Summons. If the petition is not summarily dismissed in

accordance with Rule 21 of these Rules, the Secretary of the Tribunal shall
issue the corresponding summons to the protestee or respondent, as the
case may be, together with a copy of the petition, requiring him within ten
(10) days from receipt thereof to file his answer.
The 2004 HRET Rules on summons is silent on how the summons
should be served on the protestee. Significantly, Rule 8014[15] of the 2004
HRET Rules provides that the 1997 Rules of Civil Procedure applies by
analogy or suppletorily in so far as the latter may be applicable and not
inconsistent therewith as well as with the orders, resolutions and decisions
of the HRET. In view of the failure of the HRET Rules to specify the
authorized modes of service of summons, resort then is necessary to
Sections 6 and 7, Rule 14, 1997 Rules of Civil Procedure, which state:
SEC. 6. Service in person on defendant. Whenever practicable, the
summons shall be served handling a copy thereof to the defendant in
person, or, if he refuses to receive and sign for it, by tendering it to him.
14

[15]

RULE 80. Applicability. The following shall be applicable by analogy or in suppletory

character and effect in so far as they may be applicable and are not inconsistent with these Rules
and with the orders, resolutions and decisions of the Tribunal, namely:
(1) The Rules of Court;
(2) Decisions of the Supreme Court;
(3) Decisions of the Electoral Tribunals.

49

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

cannot be served within a reasonable time as provided in the preceding
section, service may be effected (a) by leaving copies of the summons at
the defendants residence with some person of suitable age and
discretion then residing therein, or (b) by leaving copies at defendants
office or regular place of business with some competent person in
charge thereof.
In the case at bar, the service of the summons was made through
registered mail, which is not among the allowed modes of service under
Rule 14 of the Rules of Court.

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

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

The Court sees no reason why the HRET cannot make use of its
own process servers to personally serve the summons, or alternatively,
delegate the matter to the process server of a court with territorial
jurisdiction over the place of residence of the respondent/protestee in the
election case, at the expense of the petitioner/protestant. Considering
that the proper service of summons on the respondent/protestee is a
jurisdictional requirement and goes to heart of due process, we cannot
allow service of summons by a method not sanctioned by the HRET Rules
in relation to the Rules of Court.
In view of the foregoing, we find that the HRET committed grave
abuse of discretion in considering petitioner to have entered a general
denial of the allegations in respondents petition of protest and in denying
his motion to reconsider as well as his motion to admit answer with
counter-protest.

The right to due process on the part of the

respondent was violated when the Civil
Service Commission reconsidered its earlier
decision in favor of the former based on a
Motion for Reconsideration wherein said
respondent was not furnished a copy thereof
nor given the chance to comment on it.

50
DEPARTMENT OF EDUCATION VS. GODOFREDO CUANAN,
G.R. No. 169013, December 16, 2008
The factual background of the case is as follows:
On March 11, 1996, Luzviminda Borja and Juliana Castro, on behalf of
their respective minor daughters, Lily Borja and Charo Castro, filed before the
Department of Education, Culture and Sports - Regional Office No. III (DECS-RO
No. III), Cabanatuan City, two separate administrative complaints for Sexual
Harassment and Conduct Unbecoming a Public Officer against Cuanan, then
Principal of Lawang Kupang Elementary School in San Antonio, Nueva Ecija.
Acting on the complaints, DECS-RO No. III Regional Director Vilma L.
Labrador constituted an Investigating Committee, composed of three DepEd
officials from the province, to conduct a formal investigation. Following the
investigation, the Investigating Committee submitted its Investigation Report
dated December 14, 1999, finding Cuanan guilty of sexual harassment and
recommending his forced resignation without prejudice to benefits. In a Decision
dated January 28, 2000, Regional Director Labrador concurred in the findings of
the Investigating Committee and meted out the penalty of forced resignation to
Cuanan without prejudice to benefits.
In an Order dated April 13, 2000, then DepEd Secretary Andrew Gonzales
affirmed the Decision of Regional Director Labrador. On May 30, 2000, Cuanan
filed a Petition for Reconsideration thereof, but the same was denied for lack of
merit by Secretary Gonzales in a Resolution dated June 19, 2000.
Cuanan elevated his case to the CSC. On January 20, 2003, the CSC
issued Resolution No. 030069 , which set aside the June 19, 2000 Resolution of
Secretary Gonzales and exonerated Cuanan from the charge of sexual harassment.
On January 23, 2003, copies of the resolution were duly sent to the parties,
including the DepEd , Cuanan received a copy of Resolution No. 030069 on
January 31, 2003 .
In a Letter dated February 3, 2003, Cuanan requested his reinstatement as
Elementary School Principal I . In a 1 st Indorsement, the District Supervisor
recommended appropriate action. In a 2nd Indorsement dated February 4, 2003,
Schools Division Superintendent Dioscorides D. Lusung (Superintendent)
recommended that Cuanan be reinstated to duty as School Principal of San
Antonio District upon finality of the decision of the CSC . In a Letter dated
February 10, 2003, Regional Director Ricardo T. Sibug informed the
Superintendent that Cuanan could not be immediately reinstated to the service until
an order of implementation was received from the Department Secretary.
Sometime in March 2003, DepEd Undersecretary Jose Luis Martin C.
Gascon sent a letter to the CSC requesting a copy of CSC Resolution No. 030069
dated January 20, 2003. In a Letter dated March 25, 2003, the CSC informed the
DepEd that a copy of the requested resolution was duly sent to it on January 23,

51
2003. Nonetheless, the CSC sent another copy of the resolution to the DepEd for
its reference. The DepEd received said reference copy on March 28, 2003.
On April 11, 2003, then DepEd Secretary Edilberto C. de Jesus filed
a Petition for Review/Reconsideration with the CSC. No copy of the pleading
was served upon Cuanan.
On July 29, 2003, Secretary De Jesus filed a Supplemental Petition for
Review/Reconsideration reiterating the prayer for reversal of the resolution.
Again, no copy of the pleading was served upon Cuanan.
Subsequently, pursuant to Division Special Order No. 001 series of 2003
dated June 18, 2003, Cuanan was reinstated to his former position as school
principal effective April 30, 2003 In Division Special Order No. 285, series of
2003 dated July 8, 2003, Cuanan was directed to return to duty . Based thereon,
Cuanan requested payment of salaries and his inclusion in the payroll, which the
Division School Superintendent of Nueva Ecija duly endorsed on November 7,
2003 .
However, on October 22, 2004, the CSC issued Resolution No. 041147
setting aside CSC Resolution No. 030069 dated January 20, 2003. It found
Cuanan guilty of Sexual Harassment, Grave Misconduct and Conduct Grossly
Prejudicial to the Best Interest of the Service and meted out the penalty of
dismissal from the service with forfeiture of retirement benefits, cancellation of his
service eligibility, and perpetual disqualification from holding public office.
Cuanan received a copy of the Resolution on November 9, 2004 .
Thirteen days later, or on November 22, 2004, Cuanan filed a petition for
certiorari with the CA seeking to annul Resolution No. 041147, alleging that the
CSC should not have entertained the petition for review/reconsideration since the
DepEd was not the complainant or the party adversely affected by the resolution;
that the petition for review/reconsideration was filed out of time; and that Cuanan
was not furnished copies of the pleadings filed by the DepEd in violation of
procedural due process.
The DepEd sought the dismissal of the petition on the ground of improper
remedy, the mode of review from a decision of the CSC being a petition for review
under Rule 43 of the Rules of Court.
On May 16, 2005, the CA rendered a Decision granting the petition for
certiorari and setting aside CSC Resolution No. 041147 dated October 12, 2004.
The CA held that while a motion for reconsideration and a petition for review
under Rule 43 were available remedies, Cuanan's recourse to a petition for
certiorari was warranted, since the act complained of was patently illegal; that the
CSC gravely abused its discretion in granting the petition for
review/reconsideration filed by the DepEd without regard for Cuanan's
fundamental right to due process, since he was not duly notified of the petition for
review/reconsideration, nor was he required by the CSC to file a comment thereon,
much less, given a copy of the said petition; that the DepEd failed to establish that

52
the resolution was not yet final and executory when it filed its petition for
review/reconsideration.
DepEd filed a Motion for Reconsideration but the CA denied the same in
its Resolution dated July 18, 2005.
Hence, the present petition on the following grounds:
I
WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A
QUESTION OF LAW IN TAKING COGNIZANCE OF THE PETITION IN
CA-G.R. SP NO. 87499, THE SAME NOT BEING THE PROPER REMEDY
IN ASSAILING CSC RESOLUTION NO. 041147 DATED OCTOBER 22,
2004.
II
WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A
QUESTION OF LAW IN ADJUDGING CSC AS HAVING COMMITTED
GRAVE ABUSE OF DISCRETION IN ISSUING RESOLUTION NO. 041147
DATED OCTOBER 22, 2004 .
DepEd contends that the CA should have dismissed outright the petition
for certiorari because CSC decisions are appealable to the CA by petition for
review under Rule 43; that the filing of a motion for reconsideration was a
precondition to the filing of a petition for certiorari under Rule 65; that the DepEd,
even if not the complainant, may question the resolution of the CSC; that Cuanan
failed to prove that the CSC's petition for review/reconsideration was not
seasonably filed; that even if Cuanan was not served a copy of the pleadings filed
by the DepEd, the CSC was not bound by procedural rules.
Cuanan, on the other hand, contends that the DepEd cannot file a motion
for reconsideration from the CSC Resolution exonerating him, since it is not the
complainant in the administrative case and therefore not a party adversely affected
by the decision therein; that even if DepEd may seek reconsideration of the CSC
Resolution, the petition for review/reconsideration was filed out of time; and that
Cuanans right to due process was violated when he was not given a copy of the
pleadings filed by the DepEd or given the opportunity to comment thereon.
The Court finds it necessary, before delving on the grounds relied upon by
the DepEd in support of the petition, to first resolve the question of whether the
DepEd can seek reconsideration of the CSC Resolution exonerating Cuanan.
In a long line of cases, beginning with Civil Service Commission v.
Dacoycoy , and reiterated in Philippine National Bank v. Garcia, Jr ., the Court
has maintained that the disciplining authority qualifies as a party adversely affected
by the judgment, who can file an appeal of a judgment of exoneration in an

53
administrative case. CSC Resolution No. 021600 allows the disciplining authority
to appeal from a decision exonerating an erring employee, thus:
Section 2. Coverage and Definition of Terms. x x x (l) PARTY
ADVERSELY AFFECTED refers to the respondent against whom a decision in a
disciplinary case has been rendered or to the disciplining authority in an appeal
from a decision exonerating the said employee. (Emphasis supplied)
Hence, Cuanan's exoneration under CSC Resolution No. 030069 may be subject to
a motion for reconsideration by the DepEd which, as the appointing and
disciplining authority, is a real party in interest.
Now, as to the merits of DepEd's arguments, the Court finds none.
The remedy of an aggrieved party from a resolution issued by the CSC is
to file a petition for review thereof under Rule 43 of the Rules of Court within
fifteen days from notice of the resolution. Recourse to a petition for certiorari
under Rule 65 renders the petition dismissible for being the wrong remedy.
Nonetheless, there are exceptions to this rule, to wit: (a) when public welfare and
the advancement of public policy dictates; (b) when the broader interest of justice
so requires; (c) when the writs issued are null and void; or (d) when the
questioned order amounts to an oppressive exercise of judicial authority . As will
be shown forthwith, exception (c) applies to the present case.
Furthermore, while a motion for reconsideration is a condition precedent
to the filing of a petition for certiorari, immediate recourse to the extraordinary
remedy of certiorari is warranted where the order is a patent nullity, as where the
court a quo has no jurisdiction; where petitioner was deprived of due process and
there is extreme urgency for relief; where the proceedings in the lower court are a
nullity for lack of due process; where the proceeding was ex parte or one in which
the petitioner had no opportunity to object . These exceptions find application to
Cuanan's petition for certiorari in the CA.
At any rate, Cuanan's petition for certiorari before the CA could be treated
as a petition for review, the petition having been filed on November 22, 2004, or
thirteen (13) days from receipt on November 9, 2004 of CSC Resolution No.
041147, clearly within the 15-day reglementary period for the filing of a petition
for review . Such move would be in accordance with the liberal spirit pervading the
Rules of Court and in the interest of substantial justice .
Furthermore, CSC Resolution No. 030069 has long become final and
executory. It must be noted that the records show that copies of CSC Resolution
No. 030069 were duly sent to the parties, including DepEd, on January 23, 2003 .
Cuanan received a copy thereof on January 31, 2003 while the DepEd requested a
copy sometime in March 2003, or about two months later. Under the Rules of
Evidence, it is presumed that official duty has been regularly performed, unless
contradicted . This presumption includes that of regularity of service of judgments,
final orders or resolutions.

54
Consequently, the burden of proving the irregularity in official conduct -that is, non-receipt of the duly sent copy of CSC Resolution No. 030069 -- is on the
part of the DepEd, which in the present case clearly failed to discharge the same .
Thus, the presumption stands that CSC Resolution No. 030069 dated January 20,
2003 had already become final and executory when the DepEd filed its Petition for
Review/Reconsideration on April 11, 2003, more than two months later.
It is elementary that once judgment has become final and executory, it
becomes immutable and can no longer be amended or modified. In GallardoCorro v. Gallardo , this Court held:
Nothing is more settled in law than that once a judgment attains finality it
thereby becomes immutable and unalterable. It may no longer be modified in any
respect, even if the modification is meant to correct what is perceived to be an
erroneous conclusion of fact or law, and regardless of whether the modification is
attempted to be made by the court rendering it or by the highest court of the land.
Just as the losing party has the right to file an appeal within the prescribed period,
the winning party also has the correlative right to enjoy the finality of the resolution
of his case. The doctrine of finality of judgment is grounded on fundamental
considerations of public policy and sound practice, and that, at the risk of
occasional errors, the judgments or orders of courts must become final at some
definite time fixed by law; otherwise, there would be no end to litigations, thus
setting to naught the main role of courts of justice which is to assist in the
enforcement of the rule of law and the maintenance of peace and order by settling
justiciable controversies with finality .
Moreover, while it is true that administrative tribunals exercising quasijudicial functions are free from the rigidity of certain procedural requirements, they
are bound by law and practice to observe the fundamental and essential
requirements of due process in justiciable cases presented before them . The
relative freedom of the CSC from the rigidities of procedure cannot be
invoked to evade what was clearly emphasized in the landmark case of Ang
Tibay v. Court of Industrial Relations that all administrative bodies cannot
ignore or disregard the fundamental and essential requirements of due
process.
Furthermore, Section 43.A of the Uniform Rules in Administrative Cases
in the Civil Service provides:
Section 43.A. Filing of Supplemental Pleadings. - All pleadings filed by
the parties with the Commission, shall be copy furnished the other party with
proof of service filed with the Commission.
Any supplemental pleading to supply deficiencies in aid of an original
pleading but which should not entirely substitute the latter can be filed only upon a
favorable action by the Commission on the motion of a party to the case. The said
motion should be submitted within five (5) days from receipt of a copy of the
original pleading and it is discretionary upon the Commission to allow the same or
not or even to consider the averments therein.(Emphasis supplied)

55

Cuanan undoubtedly was denied procedural due process. He had no

opportunity to participate in the proceedings for the petition for review/
reconsideration filed by the DepEd, since no copy of the pleadings filed by the
DepEd were served upon him or his counsel; nor was he even required by the CSC
to file his comments thereon. Considering that pleadings filed by the DepEd were
not served upon Cuanan, they may be treated as mere scraps of paper which
should not have merited the attention or consideration of the CSC.
WHEREFORE, the petition is DENIED. The assailed Decision and
Resolution of the Court of Appeals in CA-G.R. SP No. 87499 are AFFIRMED.
There is no violation of the petitioners
right to due process when after the
election protest against him was already
submitted for decision and the ballots
transferred to the Senate Electoral
Tribunal, the COMELEC went to
deliberate on the case at the Senate
Electoral Tribunal using the ballots
therein in the process without notice to
the petitioner.
JOSELITO MENDOZA VS. COMELEC and
ROBERTO PAGDANGANAN, G.R. No. 188308,
October 15, 2009
BRION, J.:
The petitioner and the respondent vied for the position of Governor of the
Province of Bulacan in the May 14, 2007 elections. The petitioner was
proclaimed winning candidate and assumed the office of Governor.
The respondent seasonably filed an election protest with the COMELEC,
which was raffled to the Second Division and docketed as EPC No. 2007-44.
Revision of ballots involving the protested and counter-protested precincts in
Angat, Bocaue, Calumpit, Doa Remedios Trinidad, Guiginto, Malolos,
Meycauayan, Norzagaray, Pandi, Paombong, Plaridel, Pulilan, San Rafael and
San Jose del Monte soon followed. The revision was conducted at the
COMELECs office in Intramuros. After revision, the parties presented their
other evidence, leading to the parties formal offer of their respective evidence.
The COMELEC approved the parties formal offer of evidence and then
required the parties to submit their respective memoranda. The parties complied
with the COMELECs order. The case was thereafter submitted for resolution.
On March 2, 2009 the COMELEC transferred the Bulacan ballot boxes,
including those involved in the provincial election contest, to the Senate Electoral
Tribunal (SET) in connection with the protest filed by Aquilino Pimentel III

56
against Juan Miguel Zubiri. In light of this development, the petitioner moved to
suspend further proceedings. .
The COMELECs Second Division denied the petitioners motion in its
Order of April 29, 2009, ruling that the COMELEC has plenary powers to find
alternative methods to facilitate the resolution of the election protest; thus, it
concluded that it would continue the proceedings after proper coordination with
the SET. The petitioner moved to reconsider this Order, but the COMELECs
Second Division denied the motion in its Order of May 26, 2009. These interrelated Resolutions led to the COMELECs continued action specifically, the
appreciation of ballots on the provincial election contest at the SET offices--which the COMELEC did without informing the petitioner.
Allegedly alarmed by information on COMELEC action on the provincial
election contest within the SET premises without notice to him and without his
participation, the petitioners counsel wrote the SET Secretary, Atty. Irene
Guevarra, a letter dated June 10, 2009 to confirm the veracity of the reported
conduct of proceedings.15[2] The SET Secretary responded on June 17, 2009 as
follows:
x x x please be informed that the conduct of proceedings in
COMELEC EPC No. 2007-44 (Pagdanganan vs. Mendoza) within
the Tribunal Premises was authorized by then Acting Chairman of
the Tribunal, Justice Antonio T. Carpio, upon formal request of the
Office of Commissioner Lucenito N. Tagle.
Basis of such grant is Section 3, Comelec Resolution No.
2812 dated 17 October 1995, stating that (t)he Tribunals, the
Commission and the Courts shall coordinate and make
arrangement with each other so as not to delay or interrupt the
revision of ballots being conducted. The synchronization of
revision of ballots shall be such that the expeditious disposition of
the respective protest case shall be the primary concern. While
the said provision speaks only of revision, it has been the practice
of the Tribunal to allow the conduct of other proceedings in local
election protest cases within its premises as may be requested.
[emphasis supplied]16[3]
ISSUE:
A.
WHETHER OR NOT THE COMELEC VIOLATED
DUE PROCESS BY CONDUCTING PROCEEDINGS
WITHOUT GIVING DUE NOTICE TO THE PETITIONER.
The petitioner argues that the election protest involves his election as
Governor; thus, its subject matter involves him and the people of the Province of
Bulacan who elected him. On this basis, he claims entitlement to notice and
15[2]
16[3]

See Petition, p. 12.

Rollo, p. 45.

57
participation in all matters that involve or are related to the election protest. He
further asserts that he had the legitimate expectation that no further proceedings
would be held or conducted in the case after its submission for decision.
Citing the commentaries of Father Joaquin Bernas,17[4] the petitioner
argues that the proceedings before the COMELEC in election protests are judicial
in nature and character. Thus, the strictures of judicial due process specifically,
(a) opportunity to be heard and (b) that judgment be rendered only after lawful
hearing apply. Notices in judicial dispute, he claims, are not really just a matter
of courtesy; they are elementary fundamental element of due process, they are
part and parcel of a right of a party to be heard. He further cites Justice Isagani A.
Cruz,18[5] who wrote:
x x x Every litigant is entitled to his day in court. He has a
right to be notified of every incident of the proceeding and to be
present at every stage thereof so that he may be heard by himself
and counsel for the protection of his interest.
The petitioner claims that without notice to him of the proceedings, the
due process element of the right to have judgment only after lawful hearing is
absent. There is no way, he claims, that a judicial proceeding held without notice
to the parties could be described as a lawful hearing, especially a proceeding
which has as its subject matter the sovereign will of an entire province.
He was therefore denied his day in court, he claims, when the COMELEC
conducted the examination and appreciation of ballots. The proceedings should
be stopped and declared null and void; its future results, too, should be nullified,
as nothing derived from the anomalous and unconstitutional clandestine and
unilateral proceedings should ever be part of any decision that the COMELEC
may subsequently render. The poisonous fruits (derived from the proceedings)
should have no part and should not be admitted for any purpose and/or in any
judicial proceeding.
HELD:
The petition is anchored on the alleged conduct of proceedings in the
election protest following the completed revision of ballots at the SET
premises without notice to and without the participation of the petitioner.
Significantly, the conduct of proceedings is confirmed by the SET Secretary in
the letter we quoted above.19[8] As the issues raised show the petitioners focus
is not really on the COMELEC Orders denying the suspension of proceedings
when the ballot boxes and other election materials pertinent to the election contest
were transferred to the SET; the focus is on what the COMELEC did after to the
issuance of the Resolutions. We read the petition in this context as these

17[4]

J. Bernas, Constitutional Structure and Powers of Government, 2005, pp. 718-719.

I. Cruz, Constitutional Law, 2003, p. 14.
19[8]
Supra note 3.
18[5]

58
COMELEC Orders are now unassailable as the period to challenge them has long
passed.20[9]
The substantive issue we are primarily called upon to resolve is whether
there were proceedings within the SET premises, entitling the petitioner to notice
and participation, which were denied to him; in other words, the issue is whether
the petitioners right to due process has been violated. A finding of due process
violation, because of the inherent arbitrariness it carries, necessarily amounts to
grave abuse of discretion.
As a preliminary matter, we note that the petitioner has claimed that
COMELEC exercises judicial power in its action over provincial election contests
and has argued its due process position from this view. We take this opportunity
to clarify that judicial power in our country is vested in one Supreme Court and
in such lower courts as may be established by law.21[10] This exclusive grant of
authority to the Judiciary is reinforced under the second paragraph of Section 1,
Article VIII of the Constitution which further states that Judicial power includes
the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable.. ., thus constitutionally locating
the situs of the exercise of judicial power in the courts.
In contrast with the above definitions, Section 2, Article IX(C) of the
Constitution lists the COMELECs powers and functions, among others, as
follows:
(1) Enforce and administer all laws and regulations relative
to the conduct of an election, plebiscite, initiative, referendum, and
recall.
(2) Exercise exclusive original jurisdiction over all contests
relating to the elections, returns and qualifications of all elective
regional, provincial, and city officials, and appellate jurisdiction
over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay
officials by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on
election contests involving elective municipal and barangay
officials shall be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all
questions affecting elections, including determination of the
number and location of polling places, appointment of election
officials and inspectors, and registration of voters.

20[9]

See Section 3, Rule 64 of the Rules of Court. The petitioner received the COMELEC Resolution denying his
motion for reconsideration on June 1, 2009. Thirty (30) days later or on July 1, 2009, he filed a motion for
extension of time to file the petition. The petition cannot but be late because of the remainder rule under Section
3, Rule 64.
21[10]
Section 1 (first paragraph), Article VIII, 1987 Constitution.

59
Under these terms, the COMELEC under our governmental structure is a
constitutional administrative agency and its powers are essentially executive in
nature (i.e., to enforce and administer election laws),22[11] quasi-judicial (to
exercise original jurisdiction over election contests of regional, provincial and city
officials and appellate jurisdiction over election contests of other lower ranking
officials), and quasi-legislative (rulemaking on all questions affecting elections
and the promulgation of its rules of procedure).
The COMELECs adjudicative function is quasi-judicial since it is a
constitutional body, other than a court, vested with authority to decide election
contests, and in the course of the exercise of its jurisdiction, to hold hearings and
exercise discretion of a judicial nature;23[12] it receives evidence, ascertain the
facts from these submissions, determine the law and the legal rights of the parties,
and on the basis of all these decides on the merits of the case and renders
judgment.24[13] Despite the exercise of discretion that is essentially judicial in
character, particularly with respect to election contests, COMELEC is not a
tribunal within the judicial branch of government and is not a court exercising
judicial power in the constitutional sense; 25[14] hence, its adjudicative function,
exercised as it is in the course of administration and enforcement, is quasijudicial.
The appropriate due process standards that apply to the COMELEC, as an
administrative or quasi-judicial tribunal, are those outlined in the seminal case of
Ang Tibay v. Court of Industrial Relations,26[16] quoted below:
(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. xxx
(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.
(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 its
decision. A decision with absolutely nothing to support it is a
nullity, a place when directly attached.
(4) Not only must there be some evidence to support a
finding or conclusion, but the evidence must be "substantial.
22[11]

Ututalum v. Commission on Elections, G.R. No. L-25349, December 3, 1965, 15 SCRA 465.
See: Presidential Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16, 1989, 171
SCRA 348; Midland Insurance Corporation v. IAC, No. L-71905, August 13, 1986, 143 SCRA 458.
24[13]
See: Cario v. Commission on Human Rights, G.R. No. 96681, December 2, 1991, 204 SCRA 483, on the
activities encompassed by the exercise of quasi-judicial power.
25[14]
See: Cipriano v. COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45, citing Sandoval v.
COMELEC, 323 SCRA 403 [2000].
26[16]
69 Phil. 635 (1940).
23[12]

60
"Substantial evidence is more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion."
(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.
(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.
(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 decisions rendered. The performance of this
duty is inseparable from the authority conferred upon it.
These are now commonly referred to as cardinal primary rights in
administrative proceedings.
The first of the enumerated rights pertain to the substantive rights of a
party at hearing stage of the proceedings. The essence of this aspect of due
process, we have consistently held, is simply the opportunity to be heard, or as
applied to administrative proceedings, an opportunity to explain ones side or an
opportunity to seek a reconsideration of the action or ruling complained of. 27[17] A
formal or trial-type hearing is not at all times and in all instances essential; in the
case of COMELEC, Rule 17 of its Rules of Procedure defines the requirements
for a hearing and these serve as the standards in the determination of the presence
or denial of due process.
The second, third, fourth, fifth, and sixth aspects of the Ang Tibay
requirements are reinforcements of the right to a hearing and are the inviolable
rights applicable at the deliberative stage, as the decision-maker decides on the
evidence presented during the hearing. These standards set forth the guiding
considerations in deliberating on the case and are the material and substantial
components of decision-making. Briefly, the tribunal must consider the totality of
the evidence presented which must all be found in the records of the case (i.e.,
those presented or submitted by the parties); the conclusion, reached by the
decision-maker himself and not by a subordinate, must be based on substantial
evidence.28[18]
Finally, the last requirement, relating to the form and substance of the
decision of a quasi-judicial body, further complements the hearing and decisionmaking due process rights and is similar in substance to the constitutional
requirement that a decision of a court must state distinctly the facts and the law
27[17]
28[18]

Bautista v. Comelec, G.R. Nos. 154796-97, October 23, 2003, 414 SCRA 299.
Supra note 17.

61
upon which it is based.29[19] As a component of the rule of fairness that underlies
due process, this is the duty to give reason to enable the affected person to
understand how the rule of fairness has been administered in his case, to expose
the reason to public scrutiny and criticism, and to ensure that the decision will be
thought through by the decision-maker.
In the present case, the petitioner invokes both the due process component
rights at the hearing and deliberative stages and alleges that these component
rights have all been violated. We discuss all these allegations below.
The Right to Notice and to be Heard.
a. At the Hearing and Revision of Ballots.
Based on the pleadings filed, we see no factual and legal basis for the
petitioner to complain of denial of his hearing stage rights. In the first place, he
does not dispute that he fully participated in the proceedings of the election
protest until the case was deemed submitted for resolution; he had representation
at the revision of the ballots, duly presented his evidence, and summed up his case
through a memorandum. These various phases of the proceedings constitute the
hearing proper of the election contest and the COMELEC has more than satisfied
the opportunity to be heard that the Ang Tibay hearing stage rights require. In
these proceedings, the petitioner stood head-to-head with the respondent in an
adversarial contest where both sides were given their respective rights to speak,
make their presentations, and controvert each others submission, subject only to
established COMELEC rules of procedures. Under these undisputed facts, both
parties had their day in court, so to speak, and neither one can complain of any
denial of notice or of the right to be heard.
b. At the Proceedings at the SET.
A critical question to be answered in passing upon due process questions
at this stage of the election contest is the nature of the so-called proceedings
after the ballots and other materials pertinent to the provincial election contest
were transferred to the SET.
In the petition, the petitioner alleged that there were strange
proceedings30[20] which were unilateral, clandestine and surreptitious within the
premises of the SET, on documents, ballots and election materials whose
possession and custody have been transferred to the SET, and the petitioner was
NEVER OFFICIALLY NOTIFIED of the strange on-goings at the SET. 31[21]
Attached to the petition was the letter of the Secretary of the SET confirming the
conduct of proceedings in the provincial election contest, and citing as basis the
authority of Acting SET Chairman, Justice Antonio T. Carpio, upon the formal
request of the Office of Commissioner Lucenito N. Tagle, and citing Section 3,
29[19]

CONSTITUTION, Article VIII, Section 14; See Solid Homes, Inc. v. Laserna, G.R. No. 166051, April 8,
2008, 550 SCRA 613.
30[20]
Rollo, p. 12.
31[21]
Id., p. 13.

62
COMELEC Resolution No. 2812 dated 17 October 1995 on the coordination
envisioned among the COMELEC, the SET and the courts so as not to delay or
interrupt the revision of ballots being conducted. While the SET letter made the
reservation that While the said provision speaks only of revision, it has been the
practice of the Tribunal to allow the conduct of other proceedings in local election
protest cases within its premises as may be requested, no mention whatsoever
was made of the kind of proceedings taking place.
It was at this point that this Court intervened, in response to the
petitioners prayer for the issuance of temporary injunctive relief, through the
issuance of a Status Quo Order with a non-extendible directive for the
respondents to file their comments on the petition; for indeed, any further revision
of ballots or other adversarial proceedings after the case has been submitted for
resolution, would not only be strange and unusual but would indicate a gross
violation of due process rights.
After consideration of the respondents Comments and the petitioners
petition and Reply, we hold that the contested proceedings at the SET (contested
proceedings) are no longer part of the adversarial aspects of the election contest
that would require notice of hearing and the participation of the parties. As the
COMELEC stated in its Comment and without any contrary or disputing claim in
the petitioners Reply:32[22]
However, contrary to the claim of petitioner, public respondent in
the appreciation of the contested ballots in EPC No. 2007-44
simultaneously with the SET in SET Case No. 001-07 is not
conducting further proceedings requiring notice to the parties.
There is no revision or correction of the ballots because EPC No.
2007-04 was already submitted for resolution. Public respondent,
in coordinating with the SET, is simply resolving the submitted
protest case before it. The parties necessarily take no part in said
deliberation, which require utmost secrecy. Needless to state, the
actual decision-making process is supposed to be conducted only
by the designated members of the Second Division of the public
respondent in strict confidentiality.
In other words, what took place at the SET were the internal deliberations
of the COMELEC, as a quasi-judicial body, in the course of appreciating the
evidence presented and deciding the provincial election contest on the merits.
These deliberations are no different from judicial deliberations which are
considered confidential and privileged.33[23] We find it significant that the private
respondents Comment fully supported the COMELECs position and disavowed
any participation in the contested proceeding the petitioner complained about.
The petitioner, on the other hand, has not shown that the private respondent was
ever present in any proceeding at the SET relating to the provincial election
contest.
32[22]
33[23]

COMELEC Comment; rollo, pp. 72-S and 72-T.

See Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152.

63
To conclude, the rights to notice and to be heard are not material
considerations in the COMELECs handling of the Bulacan provincial election
contest after the transfer of the ballot boxes to the SET; no proceedings at the
instance of one party or of COMELEC has been conducted at the SET that would
require notice and hearing because of the possibility of prejudice to the other
party. The COMELEC is under no legal obligation to notify either party of the
steps it is taking in the course of deliberating on the merits of the provincial
election contest. In the context of our standard of review for the petition, we see
no grave abuse of discretion amounting to lack or excess of jurisdiction
committed by the COMELEC in its deliberation on the Bulacan election contest
and the appreciation of ballots this deliberation entailed.
Alleged Violations of
Deliberation Stage Rights.
On the basis of the above conclusion, we see no point in discussing any
alleged violation of the deliberative stage rights. First, no illegal proceeding ever
took place that would bear the poisonous fruits that the petitioner fears.
Secondly, in the absence of the results of the COMELEC deliberations through its
decision on the election protest, no basis exists to apply the Ang Tibay deliberative
stage rights; there is nothing for us to test under the standards of the due process
deliberative stages rights before the COMELEC renders its decision. Expressed in
terms of our standard of review, we have as yet no basis to determine the
existence of any grave abuse of discretion.
Conduct of COMELEC
Deliberations at the SET Premises
We turn to the issue of the propriety of the COMELECs consideration of
the provincial election contest (specifically its appreciation of the contested
ballots) at the SET premises and while the same ballots are also under
consideration by the SET for another election contest legitimately within the
SETs own jurisdiction.
We state at the outset that the COMELEC did not lose jurisdiction over the
provincial election contest, as the petitioner seems to imply, because of the
transmittal of the provincial ballot boxes and other election materials to the SET.
The Constitution conferred upon the COMELEC jurisdiction over election
protests involving provincial officials. The COMELEC in this case has lawfully
acquired jurisdiction over the subject matter, i.e., the provincial election contest,
as well as over the parties. After its jurisdiction attached, this jurisdiction cannot
be ousted by subsequent events such as the temporary transfer of evidence and
material records of the proceedings to another tribunal exercising its own
jurisdiction over another election contest pursuant to the Constitution. This is the
rule of adherence of jurisdiction.34[24]
34[24]

See: Ramos v. Central Bank of the Philippines, No. L-29352, October 4, 1971, 41 SCRA 565; Bengzon v.
Inciong, Nos. L-48706-07, June 29, 1079, 91 SCRA 248; Baltazar v. CA, 104 SCRA 619 [1981]; Ramos v. Our
Lady of Peace School, No. L-55950, December 26, 1984, 133 SCRA 741; Lee v. Presiding Judge, MTC
Legazpi City, No. L-68789, November 10, 1986, 145 SCRA 408.

64

Thus, the jurisdiction of the COMELEC over provincial election contest

exists side by side with the jurisdiction of the Senate Electoral Tribunal, with each
tribunal being supreme in their respective areas of concern (the Senate election
contests for the SET, and the regional, provincial and city election contests for the
COMELEC), and with neither one being higher than the other in terms of
precedence so that the jurisdiction of one must yield to the other.
But while no precedence in jurisdiction exists, the COMELEC, vowing to
the reality that only a single ballot exists in an election for national and local
officials, saw it fit to lay down the rule on the order of preference in the custody
and revision of ballots and other documents contained in the ballot boxes. The
order, in terms of the adjudicatory tribunal and as provided in COMELEC
Resolution No. 2812, runs:
1.
2.
3.
4.
5.

Presidential Electoral Tribunal;

Senate Electoral Tribunal;
House of Representatives Electoral Tribunal;
Commission on Elections; and
Regional Trial Courts.

This order of preference dictated that the ballot boxes and other election materials
in Bulacans provincial election contest, had to be transferred to the SET when the
latter needed these materials for its revision of ballots. The transfer to the SET,
however, did not mean that the Bulacan provincial election contest at that time
already submitted for decision had to be suspended as the COMELEC held in its
Orders of 29 April 2009 and 26 May 2009 in EPC No. 2007-44. 35[25] This is
particularly true in Bulacans case as no revision had to be undertaken, the
revision having been already terminated.
WHEREFORE, premises considered, we DISMISS the petition for
certiorari for lack of merit. We accordingly LIFT the STATUS QUO ORDER
we issued, effective immediately.
CHAPTER III - THE EQUAL
PROTECTION CLAUSE
Sec. 1nor shall any person be denied
the equal protection of the laws.
The laws considering appointed officials of
the government who filed their certificates
of candidacy considered resigned while
elected officials are not does not violate the
equal protection clause of the Constitution.

35[25]

Rollo, pp. 29-34.

65
ELEAZAR P. QUINTO and GERINO TOLENTINO,
JR. VS. COMELEC, G.R. No. 189698, February 22,
2010 (Reversing the December 1, 2009 En Banc
Decision)
Puno, CJ
The main issue in this case is whether or not 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,
providing that appointive officials are deemed automatically resigned from their
jobs upon the filing of their certificates of candidacy (while the elected officials
are not) is unconstitutional mainly on the ground that they violate the equal
protection clause of the Constitution and suffer from overbreadth.
On December 1, 2009, the Supreme Court held that the questioned
provisions of the above-mentioned laws are unconstitutional for being violative of
the equal protection clause.
On Motion for Reconsideration, the Supreme Court reconsidered its earlier
Decision and declared the above laws and COMELEC Resolution constitutional.
In support of their respective motions for reconsideration, respondent
COMELEC and movants-intervenors submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the
constitutional proscription against the participation of public
appointive officials and members of the military in partisan political
activity;
(2) The assailed provisions do not violate the equal protection clause when
they accord differential treatment to elective and appointive officials,
because such differential treatment rests on material and substantial
distinctions and is germane to the purposes of the law;
(3) The assailed provisions do not suffer from the infirmity of overbreadth;
and
(4) There is a compelling need to reverse the assailed Decision, as public
safety and interest demand such reversal.
We find the foregoing arguments meritorious.
The assailed December 1, 2009 Decision struck down Section 4(a) of
Resolution 8678, the second proviso in the third paragraph of Section 13 of
Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the
following grounds:

66
(1) They violate the equal protection clause of the Constitution because of
the differential treatment of persons holding appointive offices and
those holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil
servants holding appointive posts: (a) without distinction as to whether
or not they occupy high/influential positions in the government, and
(b) they limit these civil servants activity regardless of whether they
be partisan or nonpartisan in character, or whether they be in the
national, municipal or barangay level; and
(3) Congress has not shown a compelling state interest to restrict the
fundamental right of these public appointive officials.
We grant the motions for reconsideration. We now rule that Section 4(a)
of Resolution 8678, Section 66 of the Omnibus Election Code, and the second
proviso in the third paragraph of Section 13 of RA 9369 are not unconstitutional,
and accordingly reverse our December 1, 2009 Decision.
We now hold that Section 4(a) of Resolution 8678, Section 66 of the
Omnibus Election Code, and the second proviso in the third paragraph of Section
13 of RA 9369 are not violative of the equal protection clause of the Constitution.
i.

Farias, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemedresigned provisions challenged in the case at bar violate the equal protection
clause of the Constitution in Farias, et al. v. Executive Secretary, et al.
In Farias, the constitutionality of Section 14 of the Fair Election Act, in
relation to Sections 66 and 67 of the Omnibus Election Code, was assailed on the
ground, among others, that it unduly discriminates against appointive officials. As
Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of
elected officials) of the Omnibus Election Code, elected officials are no longer
considered ipso facto resigned from their respective offices upon their filing of
certificates of candidacy. In contrast, since Section 66 was not repealed, the
limitation on appointive officials continues to be operative they are deemed
resigned when they file their certificates of candidacy.
The petitioners in Farias thus brought an equal protection challenge
against Section 14, with the end in view of having the deemed-resigned
provisions apply equally to both elected and appointive officials. We held,
however, that the legal dichotomy created by the Legislature is a reasonable
classification, as there are material and significant distinctions between the two
classes of officials. Consequently, the contention that Section 14 of the Fair
Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code,
infringed on the equal protection clause of the Constitution, failed muster. We
ruled:

67
The petitioners' contention, that the repeal of Section 67 of
the Omnibus Election Code pertaining to elective officials gives
undue benefit to 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 (sic) part in any
election except to vote. Under the same provision, elective
officials, or officers or employees holding political offices, are

68
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.
Since the classification justifying Section 14 of Rep. Act
No. 9006, i.e., elected officials vis--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.
The case at bar is a crass attempt to resurrect a dead issue. The miracle is
that our assailed Decision gave it new life. We ought to be guided by the doctrine
of stare decisis et non quieta movere. This doctrine, which is really adherence to
precedents, mandates that once a case has been decided one way, then another
case involving exactly the same point at issue should be decided in the same
manner. This doctrine is one of policy grounded on the necessity for securing
certainty and stability of judicial decisions. As the renowned jurist Benjamin
Cardozo stated in his treatise The Nature of the Judicial Process:
It will not do to decide the same question one way between one set
of litigants and the opposite way between another. If a group of
cases involves the same point, the parties expect the same decision.
It would be a gross injustice to decide alternate cases on opposite
principles. If a case was decided against me yesterday when I was
a defendant, I shall look for the same judgment today if I am
plaintiff. To decide differently would raise a feeling of resentment
and wrong in my breast; it would be an infringement, material and
moral, of my rights." Adherence to precedent must then be the rule
rather than the exception if litigants are to have faith in the evenhanded administration of justice in the courts.
Our Farias ruling on the equal protection implications of the deemedresigned provisions cannot be minimalized as mere obiter dictum. It is trite to state
that an adjudication on any point within the issues presented by the case cannot be
considered as obiter dictum. This rule applies to all pertinent questions that are
presented and resolved in the regular course of the consideration of the case and
lead up to the final conclusion, and to any statement as to the matter on which the
decision is predicated. For that reason, a point expressly decided does not lose its
value as a precedent because the disposition of the case is, or might have been,
made on some other ground; or even though, by reason of other points in the case,
the result reached might have been the same if the court had held, on the particular

69
point, otherwise than it did. As we held in Villanueva, Jr. v. Court of Appeals, et
al.:
A decision which the case could have turned on is not regarded
as obiter dictum merely because, owing to the disposal of the
contention, it was necessary to consider another question, nor can
an additional reason in a decision, brought forward after the case
has been disposed of on one ground, be regarded as dicta. So, also,
where a case presents two (2) or more points, any one of which is
sufficient to determine the ultimate issue, but the court actually
decides all such points, the case as an authoritative precedent as to
every point decided, and none of such points can be regarded as
having the status of a dictum, and one point should not be denied
authority merely because another point was more dwelt on and
more fully argued and considered, nor does a decision on one
proposition make statements of the court regarding other
propositions dicta. (italics supplied)
ii.

Classification Germane to the Purposes of the Law

The Farias ruling on the equal protection challenge stands on solid

ground even if reexamined.
To start with, the equal protection clause 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. The test developed by jurisprudence here and yonder is that of
reasonableness, which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.
Our assailed Decision readily acknowledged that these deemed-resigned
provisions satisfy the first, third and fourth requisites of reasonableness. It,
however, proffers the dubious conclusion that the differential treatment of
appointive officials vis--vis elected officials is not germane to the purpose of the
law, because whether one holds an appointive office or an elective one, the evils
sought to be prevented by the measure remain, viz.:
For example, the Executive Secretary, or any Member of the
Cabinet for that matter, could wield the same influence as the VicePresident 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

70
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 [Certificates of Candidacy]
for the elections. Under the present state of our law, the VicePresident, 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.
Sad to state, this conclusion conveniently ignores the long-standing rule
that to remedy an injustice, the Legislature need not address every manifestation
of the evil at once; it may proceed one step at a time. In addressing a societal
concern, it must invariably draw lines and make choices, thereby creating some
inequity as to those included or excluded. Nevertheless, as long as the bounds of
reasonable choice are not exceeded, the courts must defer to the legislative
judgment. We may not strike down a law merely because the legislative aim
would have been more fully achieved by expanding the class. Stated differently,
the fact that a legislative classification, by itself, is under inclusive will not render
it unconstitutionally arbitrary or invidious. There is no constitutional requirement
that regulation must reach each and every class to which it might be applied; that
the Legislature must be held rigidly to the choice of regulating all or none.
Thus, any person who poses an equal protection challenge must
convincingly show that the law creates a classification that is palpably arbitrary
or capricious. He must refute all possible rational bases for the differing
treatment, whether or not the Legislature cited those bases as reasons for the
enactment, such that the constitutionality of the law must be sustained even if the
reasonableness of the classification is fairly debatable. In the case at bar, the
petitioners failed and in fact did not even attempt to discharge this heavy
burden. Our assailed Decision was likewise silent as a sphinx on this point even
while we submitted the following thesis:
... [I]t is not sufficient grounds for invalidation that we may
find that the statutes distinction is unfair, underinclusive, unwise,
or not the best solution from a public-policy standpoint; rather, we
must find that there is no reasonably rational reason for the
differing treatment.
In the instant case, is there a rational justification for
excluding elected officials from the operation of the deemed
resigned provisions? I submit that there is.
An election is the embodiment of the popular will, perhaps
the purest expression of the sovereign power of the people. It
involves the choice or selection of candidates to public office by
popular vote. Considering that elected officials are put in office by
their constituents for a definite term, it may justifiably be said
that they were excluded from the ambit of the deemed resigned
provisions in utmost respect for the mandate of the sovereign will.
In other words, complete deference is accorded to the will of the

71
electorate that they be served by such officials until the end of the
term for which they were elected. In contrast, there is no such
expectation insofar as appointed officials are concerned.
The dichotomized treatment of appointive and elective
officials is therefore germane to the purposes of the law. For
the law was made not merely to preserve the integrity,
efficiency, and discipline of the public service; the Legislature,
whose wisdom is outside the rubric of judicial scrutiny, also
thought it wise to balance this with the competing, yet equally
compelling, interest of deferring to the sovereign will.
(emphasis in the original)
In fine, the assailed Decision would have us equalize the playing field
by invalidating provisions of law that seek to restrain the evils from running riot.
Under the pretext of equal protection, it would favor a situation in which the evils
are unconfined and vagrant, existing at the behest of both appointive and elected
officials, over another in which a significant portion thereof is contained. The
absurdity of that position is self-evident, to say the least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in
his dissent, that elected officials (vis--vis appointive officials) have greater
political clout over the electorate, is indeed a matter worth exploring but not by
this Court. Suffice it to say that the remedy lies with the Legislature. It is the
Legislature that is given the authority, under our constitutional system, to balance
competing interests and thereafter make policy choices responsive to the
exigencies of the times. It is certainly within the Legislatures power to make the
deemed-resigned provisions applicable to elected officials, should it later decide
that the evils sought to be prevented are of such frequency and magnitude as to tilt
the balance in favor of expanding the class. This Court cannot and should not
arrogate unto itself the power to ascertain and impose on the people the best state
of affairs from a public policy standpoint.
iii.

Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling,

our assailed Decision adverted to, and extensively cited, Mancuso v. Taft. This
was a decision of the First Circuit of the United States Court of Appeals
promulgated in March 1973, which struck down as unconstitutional a similar
statutory provision. Pathetically, our assailed Decision, relying on Mancuso,
claimed:
(1) The right to run for public office is inextricably linked with two
fundamental freedoms freedom of expression and association;
(2) Any legislative classification that significantly burdens this
fundamental right must be subjected to strict equal protection review;
and

72
(3) While the state has a compelling interest in maintaining the honesty
and impartiality of its public work force, the deemed-resigned
provisions pursue their objective in a far too heavy-handed manner as
to render them unconstitutional.
It then concluded with the exhortation that since 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.
Our assailed Decisions reliance on Mancuso is completely misplaced.
We cannot blink away the fact that the United States Supreme Court effectively
overruled Mancuso three months after its promulgation by the United States
Court of Appeals. In United States Civil Service Commission, et al. v. National
Association of Letter Carriers AFL-CIO, et al. and Broadrick, et al. v. State of
Oklahoma, et al., the United States Supreme Court was faced with the issue of
whether statutory provisions prohibiting federal and state employees from taking
an active part in political management or in political campaigns were
unconstitutional as to warrant facial invalidation. Violation of these provisions
results in dismissal from employment and possible criminal sanctions.
The Court declared these provisions compliant with the equal protection
clause. It held that (i) in regulating the speech of its employees, the state as
employer has interests that differ significantly from those it possesses in
regulating the speech of the citizenry in general; (ii) the courts must therefore
balance the legitimate interest of employee free expression against the interests of
the employer in promoting efficiency of public services; (iii) if the employees
expression interferes with the maintenance of efficient and regularly functioning
services, the limitation on speech is not unconstitutional; and (iv) the Legislature
is to be given some flexibility or latitude in ascertaining which positions are to be
covered by any statutory restrictions. Therefore, insofar as government employees
are concerned, the correct standard of review is an interest-balancing approach, a
means-end scrutiny that examines the closeness of fit between the governmental
interests and the prohibitions in question.
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and
the country appears to have been that partisan political activities by
federal employees must be limited if the Government is to operate
effectively and fairly, elections are to play their proper part in
representative government, and employees themselves are to be
sufficiently free from improper influences. The restrictions so far
imposed on federal employees are not aimed at particular parties,
groups, or points of view, but apply equally to all partisan activities
of the type described. They discriminate against no racial, ethnic,
or religious minorities. Nor do they seek to control political
opinions or beliefs, or to interfere with or influence anyone's vote
at the polls.

73

But, as the Court held in Pickering v. Board of Education,

the government has an interest in regulating the conduct and the
speech of its employees that differ(s) significantly from those it
possesses in connection with regulation of the speech of the
citizenry in general. The problem in any case is to arrive at a
balance between the interests of the (employee), as a citizen, in
commenting upon matters of public concern and the interest of the
(government), as an employer, in promoting the efficiency of the
public services it performs through its employees. Although
Congress is free to strike a different balance than it has, if it so
chooses, we think the balance it has so far struck is sustainable by
the obviously important interests sought to be served by the
limitations on partisan political activities now contained in the
Hatch Act.
It seems fundamental in the first place that employees in
the Executive Branch of the Government, or those working for any
of its agencies, should administer the law in accordance with the
will of Congress, rather than in accordance with their own or the
will of a political party. They are expected to enforce the law and
execute the programs of the Government without bias or favoritism
for or against any political party or group or the members thereof.
A major thesis of the Hatch Act is that to serve this great end of
Government-the impartial execution of the laws-it is essential that
federal employees, for example, not take formal positions in
political parties, not undertake to play substantial roles in partisan
political campaigns, and not run for office on partisan political
tickets. Forbidding activities like these will reduce the hazards to
fair and effective government.
There is another consideration in this judgment: it is not
only important that the Government and its employees in fact
avoid practicing political justice, but it is also critical that they
appear to the public to be avoiding it, if confidence in the system
of representative Government is not to be eroded to a disastrous
extent.
Another major concern of the restriction against partisan
activities by federal employees was perhaps the immediate
occasion for enactment of the Hatch Act in 1939. That was the
conviction that the rapidly expanding Government work force
should not be employed to build a powerful, invincible, and
perhaps corrupt political machine. The experience of the 1936 and
1938 campaigns convinced Congress that these dangers were
sufficiently real that substantial barriers should be raised against
the party in power-or the party out of power, for that matter-using
the thousands or hundreds of thousands of federal employees, paid

74
for at public expense, to man its political structure and political
campaigns.
A related concern, and this remains as important as any
other, was to further serve the goal that employment and
advancement in the Government service not depend on political
performance, and at the same time to make sure that Government
employees would be free from pressure and from express or tacit
invitation to vote in a certain way or perform political chores in
order to curry favor with their superiors rather than to act out
their own beliefs. It may be urged that prohibitions against
coercion are sufficient protection; but for many years the joint
judgment of the Executive and Congress has been that to protect
the rights of federal employees with respect to their jobs and their
political acts and beliefs it is not enough merely to forbid one
employee to attempt to influence or coerce another. For example,
at the hearings in 1972 on proposed legislation for liberalizing the
prohibition against political activity, the Chairman of the Civil
Service Commission stated that the prohibitions against active
participation in partisan political management and partisan
political campaigns constitute the most significant safeguards
against coercion . . .. Perhaps Congress at some time will come to
a different view of the realities of political life and Government
service; but that is its current view of the matter, and we are not
now in any position to dispute it. Nor, in our view, does the
Constitution forbid it.
Neither the right to associate nor the right to participate in
political activities is absolute in any event. x x x
As we see it, our task is not to destroy the Act if we can, but
to construe it, if consistent with the will of Congress, so as to
comport with constitutional limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision
is constitutionally permissible, viz.:
Appellants do not question Oklahoma's right to place evenhanded restrictions on the partisan political conduct of state
employees. Appellants freely concede that such restrictions serve
valid and important state interests, particularly with respect to
attracting greater numbers of qualified people by insuring their
job security, free from the vicissitudes of the elective process, and
by protecting them from political extortion. Rather, appellants
maintain that however permissible, even commendable, the goals
of s 818 may be, its language is unconstitutionally vague and its
prohibitions too broad in their sweep, failing to distinguish
between conduct that may be proscribed and conduct that must be
permitted. For these and other reasons, appellants assert that the

75
sixth and seventh paragraphs of s 818 are void in toto and cannot
be enforced against them or anyone else.
We have held today that the Hatch Act is not impermissibly
vague. We have little doubt that s 818 is similarly not so vague that
men of common intelligence must necessarily guess at its
meaning. Whatever other problems there are with s 818, it is all
but frivolous to suggest that the section fails to give adequate
warning of what activities it proscribes or fails to set out explicit
standards' for those who must apply it. In the plainest language, it
prohibits any state classified employee from being an officer or
member of a partisan political club or a candidate for any paid
public office. It forbids solicitation of contributions for any
political organization, candidacy or other political purpose and
taking part in the management or affairs of any political party or
in any political campaign. Words inevitably contain germs of
uncertainty and, as with the Hatch Act, there may be disputes over
the meaning of such terms in s 818 as partisan, or take part in,
or affairs of political parties. But what was said in Letter
Carriers, is applicable here: there are limitations in the English
language with respect to being both specific and manageably brief,
and it seems to us that although the prohibitions may not satisfy
those intent on finding fault at any cost, they are set out in terms
that the ordinary person exercising ordinary common sense can
sufficiently understand and comply with, without sacrifice to the
public interest.' x x x
xxxx
[Appellants] nevertheless maintain that the statute is
overbroad and purports to reach protected, as well as unprotected
conduct, and must therefore be struck down on its face and held to
be incapable of any constitutional application. We do not believe
that the overbreadth doctrine may appropriately be invoked in this
manner here.
xxxx
The consequence of our departure from traditional rules of
standing in the First Amendment area is that any enforcement of a
statute thus placed at issue is totally forbidden until and unless a
limiting construction or partial invalidation so narrows it as to
remove the seeming threat or deterrence to constitutionally
protected expression. Application of the overbreadth doctrine in
this manner is, manifestly, strong medicine. It has been employed
by the Court sparingly and only as a last resort. x x x
x x x But the plain import of our cases is, at the very least,
that facial over-breadth adjudication is an exception to our

76
traditional rules of practice and that its function, a limited one at
the outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from pure speech toward
conduct and that conduct-even if expressive-falls within the scope
of otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct. Although such laws, if too
broadly worded, may deter protected speech to some unknown
extent, there comes a point where that effect-at best a predictioncannot, with confidence, justify invalidating a statute on its face
and so prohibiting a State from enforcing the statute against
conduct that is admittedly within its power to proscribe. To put the
matter another way, particularly where conduct and not merely
speech is involved, we believe that the overbreadth of a statute
must not only be real, but substantial as well, judged in relation to
the statute's plainly legitimate sweep. It is our view that s 818 is
not substantially overbroad and that whatever overbreadth may
exist should be cured through case-by-case analysis of the fact
situations to which its sanctions, assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other
broad regulatory acts, s 818 is directed, by its terms, at political
expression which if engaged in by private persons would plainly be
protected by the First and Fourteenth Amendments. But at the
same time, s 818 is not a censorial statute, directed at particular
groups or viewpoints. The statute, rather, seeks to regulate
political activity in an even-handed and neutral manner. As
indicted, such statutes have in the past been subject to a less
exacting overbreadth scrutiny. Moreover, the fact remains that s
818 regulates a substantial spectrum of conduct that is as
manifestly subject to state regulation as the public peace or
criminal trespass. This much was established in United Public
Workers v. Mitchell, and has been unhesitatingly reaffirmed today
in Letter Carriers. Under the decision in Letter Carriers, there is
no question that s 818 is valid at least insofar as it forbids
classified employees from: soliciting contributions for partisan
candidates, political parties, or other partisan political purposes;
becoming members of national, state, or local committees of
political parties, or officers or committee members in partisan
political clubs, or candidates for any paid public office; taking part
in the management or affairs of any political party's partisan
political campaign; serving as delegates or alternates to caucuses
or conventions of political parties; addressing or taking an active
part in partisan political rallies or meetings; soliciting votes or
assisting voters at the polls or helping in a partisan effort to get
voters to the polls; participating in the distribution of partisan
campaign literature; initiating or circulating partisan nominating
petitions; or riding in caravans for any political party or partisan
political candidate.

77

x x x It may be that such restrictions are impermissible and

that s 818 may be susceptible of some other improper applications.
But, as presently construed, we do not believe that s 818 must be
discarded in toto because some persons arguably protected
conduct may or may not be caught or chilled by the statute.
Section 818 is not substantially overbroad and it not, therefore,
unconstitutional on its face. (italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does
not deny the principles enunciated in Letter Carriers and Broadrick. He would
hold, nonetheless, that these cases cannot be interpreted to mean a reversal of
Mancuso, since they pertain to different types of laws and were decided based
on a different set of facts, viz.:
In Letter Carriers, the plaintiffs alleged that the Civil
Service Commission was enforcing, or threatening to enforce, the
Hatch Acts prohibition against active participation in political
management or political campaigns. The plaintiffs desired to
campaign for candidates for public office, to encourage and get
federal employees to run for state and local offices, to participate
as delegates in party conventions, and to hold office in a political
club.
In Broadrick, the appellants sought the invalidation for
being vague and overbroad a provision in the (sic) Oklahomas
Merit System of Personnel Administration Act restricting the
political activities of the States classified civil servants, in much
the same manner as the Hatch Act proscribed partisan political
activities of federal employees. Prior to the commencement of the
action, the appellants actively participated in the 1970 reelection
campaign of their superior, and were administratively charged for
asking other Corporation Commission employees to do campaign
work or to give referrals to persons who might help in the
campaign, for soliciting money for the campaign, and for receiving
and distributing campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid, an
automatic resignation provision. Kenneth Mancuso, a full time
police officer and classified civil service employee of the City of
Cranston, filed as a candidate for nomination as representative to
the Rhode Island General Assembly. The Mayor of Cranston then
began the process of enforcing the resign-to-run provision of the
City Home Rule Charter.
Clearly, as the above-cited US cases pertain to different
types of laws and were decided based on a different set of facts,
Letter Carriers and Broadrick cannot be interpreted to mean a
reversal of Mancuso. x x x (italics in the original)

78
We hold, however, that his position is belied by a plain reading of these
cases. Contrary to his claim, Letter Carriers, Broadrick and Mancuso all
concerned the constitutionality of resign-to-run laws, viz.:
(1) Mancuso involved a civil service employee who filed as a candidate
for nomination as representative to the Rhode Island General
Assembly. He assailed the constitutionality of 14.09(c) of the City
Home Rule Charter, which prohibits continuing in the classified
service of the city after becoming a candidate for nomination or
election to any public office.
(2) Letter Carriers involved plaintiffs who alleged that the Civil Service
Commission was enforcing, or threatening to enforce, the Hatch Acts
prohibition against active participation in political management or
political campaigns with respect to certain defined activities in which
they desired to engage. The plaintiffs relevant to this discussion are
(a) The National Association of Letter Carriers, which
alleged that its members were desirous of, among
others, running in local elections for offices such as
school board member, city council member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did
not, file as a candidate for the office of Borough
Councilman in his local community for fear that his
participation in a partisan election would endanger his
job; and
(c) Plaintiff Myers, who alleged that he desired to run as a
Republican candidate in the 1971 partisan election for
the mayor of West Lafayette, Indiana, and that he would
do so except for fear of losing his job by reason of
violation of the Hatch Act.
The Hatch Act defines active participation in political management or
political campaigns by cross-referring to the rules made by the Civil
Service Commission. The rule pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a
nomination or for election to any National, State,
county, or municipal office is not permissible. The
prohibition against political activity extends not
merely to formal announcement of candidacy but
also to the preliminaries leading to such
announcement and to canvassing or soliciting
support or doing or permitting to be done any act in
furtherance of candidacy. The fact that candidacy, is
merely passive is immaterial; if an employee
acquiesces in the efforts of friends in furtherance of

79
such candidacy such acquiescence constitutes an
infraction of the prohibitions against political
activity. (italics supplied)
Section 9(b) requires the immediate removal of violators and forbids
the use of appropriated funds thereafter to pay compensation to these
persons.
(3) Broadrick was a class action brought by certain Oklahoma state
employees seeking a declaration of unconstitutionality of two subparagraphs of Section 818 of Oklahomas Merit System of Personnel
Administration Act. Section 818 (7), the paragraph relevant to this
discussion, states that [n]o employee in the classified service shall be
a candidate for nomination or election to any paid public office
Violation of Section 818 results in dismissal from employment,
possible criminal sanctions and limited state employment ineligibility.
Consequently, it cannot be denied that Letter Carriers and Broadrick
effectively overruled Mancuso. By no stretch of the imagination could Mancuso
still be held operative, as Letter Carriers and Broadrick (i) concerned virtually
identical resign-to-run laws, and (ii) were decided by a superior court, the United
States Supreme Court. It was thus not surprising for the First Circuit Court of
Appeals the same court that decided Mancuso to hold categorically and
emphatically in Magill v. Lynch that Mancuso is no longer good law. As we
priorly explained:
Magill involved Pawtucket, Rhode Island firemen who ran
for city office in 1975. Pawtuckets Little Hatch Act prohibits
city employees from engaging in a broad range of political
activities. Becoming a candidate for any city office is specifically
proscribed, the violation being punished by removal from office or
immediate dismissal. The firemen brought an action against the
city officials on the ground that that the provision of the city
charter was unconstitutional. However, the court, fully cognizant
of Letter Carriers and Broadrick, took the position that
Mancuso had since lost considerable vitality. It observed that
the view that political candidacy was a fundamental interest
which could be infringed upon only if less restrictive
alternatives were not available, was a position which was no
longer viable, since the Supreme Court (finding that the
governments interest in regulating both the conduct and
speech of its employees differed significantly from its interest
in regulating those of the citizenry in general) had given little
weight to the argument that prohibitions against the coercion
of government employees were a less drastic means to the same
end, deferring to the judgment of Congress, and applying a
balancing test to determine whether limits on political
activity by public employees substantially served government

80
interests which were important enough to outweigh the
employees First Amendment rights.
It must be noted that the Court of Appeals ruled in this
manner even though the election in Magill was characterized as
nonpartisan, as it was reasonable for the city to fear, under the
circumstances of that case, that politically active bureaucrats might
use their official power to help political friends and hurt political
foes. Ruled the court:
The question before us is whether
Pawtucket's charter provision, which bars a city
employee's candidacy in even a nonpartisan city
election, is constitutional. The issue compels us to
extrapolate two recent Supreme Court decisions,
Civil Service Comm'n v. Nat'l Ass'n of Letter
Carriers and Broadrick v. Oklahoma. Both dealt
with laws barring civil servants from partisan
political activity. Letter Carriers reaffirmed United
Public Workers v. Mitchell, upholding the
constitutionality of the Hatch Act as to federal
employees. Broadrick sustained Oklahoma's Little
Hatch Act against constitutional attack, limiting its
holding to Oklahoma's construction that the Act
barred only activity in partisan politics. In Mancuso
v. Taft, we assumed that proscriptions of candidacy
in nonpartisan elections would not be
constitutional. Letter Carriers and Broadrick
compel new analysis.
xxxx
What we are obligated to do in this case, as
the district court recognized, is to apply the Courts
interest balancing approach to the kind of
nonpartisan election revealed in this record. We
believe that the district court found more residual
vigor in our opinion in Mancuso v. Taft than
remains after Letter Carriers. We have particular
reference to our view that political candidacy was a
fundamental interest which could be trenched upon
only if less restrictive alternatives were not
available. While this approach may still be viable
for citizens who are not government employees, the
Court in Letter Carriers recognized that the
government's interest in regulating both the conduct
and speech of its employees differs significantly
from its interest in regulating those of the citizenry
in general. Not only was United Public Workers v.

81
Mitchell "unhesitatingly" reaffirmed, but the Court
gave little weight to the argument that prohibitions
against the coercion of government employees were
a less drastic means to the same end, deferring to
the judgment of the Congress. We cannot be more
precise than the Third Circuit in characterizing the
Court's approach as "some sort of 'balancing'
process". It appears that the government may place
limits on campaigning by public employees if the
limits substantially serve government interests that
are "important" enough to outweigh the employees'
First Amendment rights. x x x (italics supplied)
Upholding thus the constitutionality of the law in question,
the Magill court detailed the major governmental interests
discussed in Letter Carriers and applied them to the Pawtucket
provision as follows:
In Letter Carriers[,] the first interest
identified by the Court was that of an efficient
government, faithful to the Congress rather than to
party. The district court discounted this interest,
reasoning that candidates in a local election would
not likely be committed to a state or national
platform. This observation undoubtedly has
substance insofar as allegiance to broad policy
positions is concerned. But a different kind of
possible
political
intrusion
into
efficient
administration could be thought to threaten
municipal government: not into broad policy
decisions, but into the particulars of administration
favoritism in minute decisions affecting welfare, tax
assessments, municipal contracts and purchasing,
hiring, zoning, licensing, and inspections. Just as
the Court in Letter Carriers identified a second
governmental interest in the avoidance of the
appearance of "political justice" as to policy, so
there is an equivalent interest in avoiding the
appearance of political preferment in privileges,
concessions, and benefits. The appearance (or
reality) of favoritism that the charter's authors
evidently feared is not exorcised by the nonpartisan
character of the formal election process. Where, as
here, party support is a key to successful
campaigning, and party rivalry is the norm, the city
might reasonably fear that politically active
bureaucrats would use their official power to help
political friends and hurt political foes. This is not
to say that the city's interest in visibly fair and

82
effective administration necessarily justifies a
blanket prohibition of all employee campaigning; if
parties are not heavily involved in a campaign, the
danger of favoritism is less, for neither friend nor
foe is as easily identified.
A second major governmental interest
identified in Letter Carriers was avoiding the
danger of a powerful political machine. The Court
had in mind the large and growing federal
bureaucracy and its partisan potential. The district
court felt this was only a minor threat since parties
had no control over nominations. But in fact
candidates sought party endorsements, and party
endorsements proved to be highly effective both in
determining who would emerge from the primary
election and who would be elected in the final
election. Under the prevailing customs, known party
affiliation and support were highly significant
factors in Pawtucket elections. The charter's authors
might reasonably have feared that a politically
active public work force would give the incumbent
party, and the incumbent workers, an unbreakable
grasp on the reins of power. In municipal elections
especially, the small size of the electorate and the
limited powers of local government may inhibit the
growth of interest groups powerful enough to
outbalance the weight of a partisan work force.
Even when nonpartisan issues and candidacies are
at stake, isolated government employees may seek
to influence voters or their co-workers improperly;
but a more real danger is that a central party
structure will mass the scattered powers of
government workers behind a single party platform
or slate. Occasional misuse of the public trust to
pursue private political ends is tolerable, especially
because the political views of individual employees
may balance each other out. But party discipline
eliminates this diversity and tends to make abuse
systematic. Instead of a handful of employees
pressured into advancing their immediate superior's
political ambitions, the entire government work
force may be expected to turn out for many
candidates in every election. In Pawtucket, where
parties are a continuing presence in political
campaigns, a carefully orchestrated use of city
employees in support of the incumbent party's
candidates is possible. The danger is scarcely

83
lessened by the openness of Pawtucket's nominating
procedure or the lack of party labels on its ballots.
The third area of proper governmental
interest in Letter Carriers was ensuring that
employees achieve advancement on their merits and
that they be free from both coercion and the
prospect of favor from political activity. The district
court did not address this factor, but looked only to
the possibility of a civil servant using his position to
influence voters, and held this to be no more of a
threat than in the most nonpartisan of elections. But
we think that the possibility of coercion of
employees by superiors remains as strong a factor in
municipal elections as it was in Letter Carriers.
Once again, it is the systematic and coordinated
exploitation of public servants for political ends that
a legislature is most likely to see as the primary
threat of employees' rights. Political oppression of
public employees will be rare in an entirely
nonpartisan system. Some superiors may be
inclined to ride herd on the politics of their
employees even in a nonpartisan context, but
without party officials looking over their shoulders
most supervisors will prefer to let employees go
their own ways.
In
short,
the
government
may
constitutionally restrict its employees' participation
in nominally nonpartisan elections if political
parties play a large role in the campaigns. In the
absence of substantial party involvement, on the
other hand, the interests identified by the Letter
Carriers Court lose much of their force. While the
employees' First Amendment rights would normally
outbalance these diminished interests, we do not
suggest that they would always do so. Even when
parties are absent, many employee campaigns might
be thought to endanger at least one strong public
interest, an interest that looms larger in the context
of municipal elections than it does in the national
elections considered in Letter Carriers. The city
could reasonably fear the prospect of a subordinate
running directly against his superior or running for a
position that confers great power over his superior.
An employee of a federal agency who seeks a
Congressional seat poses less of a direct challenge
to the command and discipline of his agency than a
fireman or policeman who runs for mayor or city

84
council. The possibilities of internal discussion,
cliques, and political bargaining, should an
employee gather substantial political support, are
considerable. (citations omitted)
The court, however, remanded the case to the district court
for further proceedings in respect of the petitioners overbreadth
charge. Noting that invalidating a statute for being overbroad is
not to be taken lightly, much less to be taken in the dark, the
court held:
The governing case is Broadrick, which
introduced the doctrine of "substantial" overbreadth
in a closely analogous case. Under Broadrick, when
one who challenges a law has engaged in
constitutionally unprotected conduct (rather than
unprotected speech) and when the challenged law is
aimed at unprotected conduct, "the overbreadth of a
statute must not only be real, but substantial as well,
judged in relation to the statute's plainly legitimate
sweep." Two major uncertainties attend the
doctrine: how to distinguish speech from conduct,
and how to define "substantial" overbreadth. We are
spared the first inquiry by Broadrick itself. The
plaintiffs in that case had solicited support for a
candidate, and they were subject to discipline under
a law proscribing a wide range of activities,
including soliciting contributions for political
candidates and becoming a candidate. The Court
found that this combination required a substantial
overbreadth approach. The facts of this case are so
similar that we may reach the same result without
worrying unduly about the sometimes opaque
distinction between speech and conduct.
The second difficulty is not so easily
disposed of. Broadrick found no substantial
overbreadth in a statute restricting partisan
campaigning. Pawtucket has gone further, banning
participation in nonpartisan campaigns as well.
Measuring the substantiality of a statute's
overbreadth apparently requires, inter alia, a rough
balancing of the number of valid applications
compared to the number of potentially invalid
applications. Some sensitivity to reality is needed;
an invalid application that is far-fetched does not
deserve as much weight as one that is probable. The
question is a matter of degree; it will never be
possible to say that a ratio of one invalid to nine

85
valid applications makes a law substantially
overbroad. Still, an overbreadth challenger has a
duty to provide the court with some idea of the
number of potentially invalid applications the
statute permits. Often, simply reading the statute in
the light of common experience or litigated cases
will suggest a number of probable invalid
applications. But this case is different. Whether the
statute is overbroad depends in large part on the
number of elections that are insulated from party
rivalry yet closed to Pawtucket employees. For all
the record shows, every one of the city, state, or
federal elections in Pawtucket is actively contested
by political parties. Certainly the record suggests
that parties play a major role even in campaigns that
often are entirely nonpartisan in other cities. School
committee candidates, for example, are endorsed by
the local Democratic committee.
The state of the record does not permit us to
find overbreadth; indeed such a step is not to be
taken lightly, much less to be taken in the dark. On
the other hand, the entire focus below, in the short
period before the election was held, was on the
constitutionality of the statute as applied. Plaintiffs
may very well feel that further efforts are not
justified, but they should be afforded the
opportunity to demonstrate that the charter
forecloses access to a significant number of offices,
the candidacy for which by municipal employees
would not pose the possible threats to government
efficiency and integrity which Letter Carriers, as
we have interpreted it, deems significant.
Accordingly, we remand for consideration of
plaintiffs' overbreadth claim. (italics supplied,
citations omitted)
Clearly, Letter Carriers, Broadrick, and Magill
demonstrate beyond doubt that Mancuso v. Taft, heavily relied
upon by the ponencia, has effectively been overruled. As it is no
longer good law, the ponencias exhortation that [since] 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
is misplaced and unwarranted.
Accordingly, our assailed Decisions submission that the right to run for
public office is inextricably linked with two fundamental freedoms those of
expression and association lies on barren ground. American case law has in fact

86
never recognized a fundamental right to express ones political views through
candidacy, as to invoke a rigorous standard of review. Bart v. Telford
pointedly stated that [t]he First Amendment does not in terms confer a right to
run for public office, and this court has held that it does not do so by implication
either. Thus, ones interest in seeking office, by itself, is not entitled to
constitutional protection. Moreover, one cannot bring ones action under the
rubric of freedom of association, absent any allegation that, by running for an
elective position, one is advancing the political ideas of a particular set of voters.
Prescinding from these premises, it is crystal clear that the provisions
challenged in the case at bar, are not violative of the equal protection clause. The
deemed-resigned provisions substantially serve governmental interests (i.e., (i)
efficient civil service faithful to the government and the people rather than to
party; (ii) avoidance of the appearance of political justice as to policy; (iii)
avoidance of the danger of a powerful political machine; and (iv) ensuring that
employees achieve advancement on their merits and that they be free from both
coercion and the prospect of favor from political activity). These are interests that
are important enough to outweigh the non-fundamental right of appointive
officials and employees to seek elective office.
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements
v. Fashing and Morial, et al. v. Judiciary Commission of the State of
Louisiana, et al. to buttress his dissent. Maintaining that resign-to-run provisions
are valid only when made applicable to specified officials, he explains:
U.S. courts, in subsequent cases, sustained the constitutionality
of resign-to-run provisions when applied to specified or
particular officials, as distinguished from all others, under a
classification that is germane to the purposes of the law. These
resign-to-run legislations were not expressed in a general and
sweeping provision, and thus did not violate the test of being
germane to the purpose of the law, the second requisite for a
valid classification. Directed, as they were, to particular officials,
they were not overly encompassing as to be overbroad. (emphasis
in the original)
This reading is a regrettable misrepresentation of Clements and Morial.
The resign-to-run provisions in these cases were upheld not because they referred
to specified or particular officials (vis--vis a general class); the questioned
provisions were found valid precisely because the Court deferred to legislative
judgment and found that a regulation is not devoid of a rational predicate
simply because it happens to be incomplete. In fact, the equal protection
challenge in Clements revolved around the claim that the State of Texas failed to
explain why some public officials are subject to the resign-to-run provisions,
while others are not. Ruled the United States Supreme Court:
Article XVI, 65, of the Texas Constitution provides that
the holders of certain offices automatically resign their positions if
they become candidates for any other elected office, unless the

87
unexpired portion of the current term is one year or less. The
burdens that 65 imposes on candidacy are even less substantial
than those imposed by 19. The two provisions, of course, serve
essentially the same state interests. The District Court found 65
deficient, however, not because of the nature or extent of the
provision's restriction on candidacy, but because of the manner in
which the offices are classified. According to the District Court,
the classification system cannot survive equal protection scrutiny,
because Texas has failed to explain sufficiently why some elected
public officials are subject to 65 and why others are not. As with
the case of 19, we conclude that 65 survives a challenge under
the Equal Protection Clause unless appellees can show that there
is no rational predicate to the classification scheme.
The history behind 65 shows that it may be upheld
consistent with the "one step at a time" approach that this Court
has undertaken with regard to state regulation not subject to more
vigorous scrutiny than that sanctioned by the traditional
principles. Section 65 was enacted in 1954 as a transitional
provision applying only to the 1954 election. Section 65 extended
the terms of those offices enumerated in the provision from two to
four years. The provision also staggered the terms of other offices
so that at least some county and local offices would be contested at
each election. The automatic resignation proviso to 65 was not
added until 1958. In that year, a similar automatic resignation
provision was added in Art. XI, 11, which applies to
officeholders in home rule cities who serve terms longer than two
years. Section 11 allows home rule cities the option of extending
the terms of municipal offices from two to up to four years.
Thus, the automatic resignation provision in Texas is a
creature of the State's electoral reforms of 1958. That the State did
not go further in applying the automatic resignation provision to
those officeholders whose terms were not extended by 11 or 65,
absent an invidious purpose, is not the sort of malfunctioning of
the State's lawmaking process forbidden by the Equal Protection
Clause. A regulation is not devoid of a rational predicate simply
because it happens to be incomplete. The Equal Protection Clause
does not forbid Texas to restrict one elected officeholder's
candidacy for another elected office unless and until it places
similar restrictions on other officeholders. The provision's
language and its history belie any notion that 65 serves the
invidious purpose of denying access to the political process to
identifiable classes of potential candidates. (citations omitted and
italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that
there is no blanket approval of restrictions on the right of public employees to
become candidates for public office out of context. A correct reading of that line

88
readily shows that the Court only meant to confine its ruling to the facts of that
case, as each equal protection challenge would necessarily have to involve
weighing governmental interests vis--vis the specific prohibition assailed. The
Court held:
The interests of public employees in free expression and political
association are unquestionably entitled to the protection of the first
and fourteenth amendments. Nothing in today's decision should be
taken to imply that public employees may be prohibited from
expressing their private views on controversial topics in a manner
that does not interfere with the proper performance of their public
duties. In today's decision, there is no blanket approval of
restrictions on the right of public employees to become candidates
for public office. Nor do we approve any general restrictions on the
political and civil rights of judges in particular. Our holding is
necessarily narrowed by the methodology employed to reach it. A
requirement that a state judge resign his office prior to becoming a
candidate for non-judicial office bears a reasonably necessary
relation to the achievement of the state's interest in preventing the
actuality or appearance of judicial impropriety. Such a requirement
offends neither the first amendment's guarantees of free expression
and association nor the fourteenth amendment's guarantee of equal
protection of the laws. (italics supplied)

Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining
which of its employment positions require restrictions on partisan
political activities and which may be left unregulated. And a State
can hardly be faulted for attempting to limit the positions upon
which such restrictions are placed. (citations omitted)
V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the
Omnibus Election Code Do Not Suffer from Overbreadth
Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA
9369, and Section 66 of the Omnibus Election Code on equal protection ground,
our assailed Decision struck them down for being overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding
appointive posts without due regard for the type of position being held
by the employee seeking an elective post and the degree of influence
that may be attendant thereto; and

89
(2) The assailed provisions limit the candidacy of any and all civil servants
holding appointive positions without due regard for the type of office
being sought, whether it be partisan or nonpartisan in character, or in
the national, municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i.

Limitation on Candidacy Regardless of Incumbent Appointive Officials

Position, Valid

According to the assailed Decision, the challenged provisions of law are

overly broad because they apply indiscriminately to all civil servants holding
appointive posts, without due regard for the type of position being held by the
employee running for elective office and the degree of influence that may be
attendant thereto.
Its underlying assumption appears to be that the evils sought to be
prevented are extant only when the incumbent appointive official running for
elective office holds an influential post.
Such a myopic view obviously fails to consider a different, yet equally
plausible, threat to the government posed by the partisan potential of a large and
growing bureaucracy: the danger of systematic abuse perpetuated by a powerful
political machine that has amassed the scattered powers of government
workers so as to give itself and its incumbent workers an unbreakable grasp on
the reins of power. As elucidated in our prior exposition:
Attempts by government employees to wield influence over
others or to make use of their respective positions (apparently) to
promote their own candidacy may seem tolerable even innocuous
particularly when viewed in isolation from other similar attempts
by other government employees. Yet it would be decidedly
foolhardy to discount the equally (if not more) realistic and
dangerous possibility that such seemingly disjointed attempts,
when taken together, constitute a veiled effort on the part of an
emerging central party structure to advance its own agenda through
a carefully orchestrated use of [appointive and/or elective]
officials coming from various levels of the bureaucracy.
[T]he avoidance of such a politically active public work
force which could give an emerging political machine an
unbreakable grasp on the reins of power is reason enough to
impose a restriction on the candidacies of all appointive public
officials without further distinction as to the type of positions being
held by such employees or the degree of influence that may be
attendant thereto. (citations omitted)

90
ii.

Limitation on Candidacy Regardless of Type of Office Sought,

Valid

The assailed Decision also held that the challenged provisions of law are
overly broad because they are made to apply indiscriminately to all civil servants
holding appointive offices, without due regard for the type of elective office being
sought, whether it be partisan or nonpartisan in character, or in the national,
municipal or barangay level.
This erroneous ruling is premised on the assumption 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 [so as] to warrant
distinctive treatment, so that restrictions on candidacy akin to those imposed by
the challenged provisions can validly apply only to situations in which the
elective office sought is partisan in character. To the extent, therefore, that such
restrictions are said to preclude even candidacies for nonpartisan elective offices,
the challenged restrictions are to be considered as overbroad.
Again, a careful study of the challenged provisions and related laws on the
matter will show that the alleged overbreadth is more apparent than real. Our
exposition on this issue has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that
the rules and guidelines set forth therein refer to the filing of
certificates of candidacy and nomination of official candidates of
registered political parties, in connection with the May 10, 2010
National and Local Elections. Obviously, these rules and
guidelines, including the restriction in Section 4(a) of Resolution
8678, were issued specifically for purposes of the May 10, 2010
National and Local Elections, which, it must be noted, are
decidedly partisan in character. Thus, it is clear that the restriction
in Section 4(a) of RA 8678 applies only to the candidacies of
appointive officials vying for partisan elective posts in the May
10, 2010 National and Local Elections. On this score, the
overbreadth challenge leveled against Section 4(a) is clearly
unsustainable.
Similarly, a considered review of Section 13 of RA 9369
and Section 66 of the Omnibus Election Code, in conjunction with
other related laws on the matter, will confirm that these provisions
are likewise not intended to apply to elections for nonpartisan
public offices.
The only elections which are relevant to the present inquiry
are the elections for barangay offices, since these are the only
elections in this country which involve nonpartisan public offices.
In this regard, it is well to note that from as far back as the
enactment of the Omnibus Election Code in 1985, Congress has

91
intended that these nonpartisan barangay elections be governed by
special rules, including a separate rule on deemed resignations
which is found in Section 39 of the Omnibus Election Code. Said
provision states:
Section 39. Certificate of Candidacy. No person
shall be elected punong barangay or kagawad ng
sangguniang barangay unless he files a sworn
certificate of candidacy in triplicate on any day
from the commencement of the election period but
not later than the day before the beginning of the
campaign period in a form to be prescribed by the
Commission. The candidate shall state the barangay
office for which he is a candidate.
xxxx
Any elective or appointive municipal, city,
provincial or national official or employee, or those
in the civil or military service, including those in
government-owned or-controlled corporations,
shall be considered automatically resigned upon the
filing of certificate of candidacy for a barangay
office.
Since barangay elections are governed by a separate
deemed resignation rule, under the present state of law, there
would be no occasion to apply the restriction on candidacy found
in Section 66 of the Omnibus Election Code, and later reiterated in
the proviso of Section 13 of RA 9369, to any election other than a
partisan one. For this reason, the overbreadth challenge raised
against Section 66 of the Omnibus Election Code and the pertinent
proviso in Section 13 of RA 9369 must also fail.
In any event, even if we were to assume, for the sake of argument, that
Section 66 of the Omnibus Election Code and the corresponding provision in
Section 13 of RA 9369 are general rules that apply also to elections for
nonpartisan public offices, the overbreadth challenge would still be futile. Again,
we explained:
In the first place, the view that Congress is limited to
controlling only partisan behavior has not received judicial
imprimatur, because the general proposition of the relevant US
cases on the matter is simply that the government has an interest in
regulating the conduct and speech of its employees that differs
significantly from those it possesses in connection with regulation
of the speech of the citizenry in general.

92
Moreover, in order to have a statute declared as
unconstitutional or void on its face for being overly broad,
particularly where, as in this case, conduct and not pure speech
is involved, the overbreadth must not only be real, but substantial
as well, judged in relation to the statutes plainly legitimate sweep.
In operational terms, measuring the substantiality of a
statutes overbreadth would entail, among other things, a rough
balancing of the number of valid applications compared to the
number of potentially invalid applications. In this regard, some
sensitivity to reality is needed; an invalid application that is farfetched does not deserve as much weight as one that is probable.
The question is a matter of degree. Thus, assuming for the sake of
argument that the partisan-nonpartisan distinction is valid and
necessary such that a statute which fails to make this distinction is
susceptible to an overbreadth attack, the overbreadth challenge
presently mounted must demonstrate or provide this Court with
some idea of the number of potentially invalid elections (i.e. the
number of elections that were insulated from party rivalry but were
nevertheless closed to appointive employees) that may in all
probability result from the enforcement of the statute.
The state of the record, however, does not permit us to find
overbreadth. Borrowing from the words of Magill v. Lynch, indeed,
such a step is not to be taken lightly, much less to be taken in the
dark, especially since an overbreadth finding in this case would
effectively prohibit the State from enforcing an otherwise valid
measure against conduct that is admittedly within its power to
proscribe.
This Court would do well to proceed with tiptoe caution, particularly when
it comes to the application of the overbreadth doctrine in the analysis of statutes
that purportedly attempt to restrict or burden the exercise of the right to freedom
of speech, for such approach is manifestly strong medicine that must be used
sparingly, and only as a last resort.
In the United States, claims of facial overbreadth have been entertained
only where, in the judgment of the court, the possibility that protected speech of
others may be muted and perceived grievances left to fester (due to the possible
inhibitory effects of overly broad statutes) outweighs the possible harm to society
in allowing some unprotected speech or conduct to go unpunished. Facial
overbreadth has likewise not been invoked where a limiting construction could be
placed on the challenged statute, and where there are readily apparent
constructions that would cure, or at least substantially reduce, the alleged
overbreadth of the statute.
In the case at bar, the probable harm to society in permitting incumbent
appointive officials to remain in office, even as they actively pursue elective

93
posts, far outweighs the less likely evil of having arguably protected candidacies
blocked by the possible inhibitory effect of a potentially overly broad statute.
In this light, the conceivably impermissible applications of the challenged
statutes which are, at best, bold predictions cannot justify invalidating these
statutes in toto and prohibiting the State from enforcing them against conduct that
is, and has for more than 100 years been, unquestionably within its power and
interest to proscribe. Instead, the more prudent approach would be to deal with
these conceivably impermissible applications through case-by-case adjudication
rather than through a total invalidation of the statute itself.
Indeed, the anomalies spawned by our assailed Decision have taken place.
In his Motion for Reconsideration, intervenor Drilon stated that a number of highranking Cabinet members had already filed their Certificates of Candidacy
without relinquishing their posts. Several COMELEC election officers had
likewise filed their Certificates of Candidacy in their respective provinces. Even
the Secretary of Justice had filed her certificate of substitution for representative
of the first district of Quezon province last December 14, 2009 even as her
position as Justice Secretary includes supervision over the City and Provincial
Prosecutors, who, in turn, act as Vice-Chairmen of the respective Boards of
Canvassers. The Judiciary has not been spared, for a Regional Trial Court Judge
in the South has thrown his hat into the political arena. We cannot allow the
tilting of our electoral playing field in their favor.
For the foregoing reasons, we now rule that Section 4(a) of Resolution
8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the
Omnibus Election Code, are not unconstitutionally overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the
respondents and the intervenors Motions for Reconsideration; REVERSE and
SET ASIDE this Courts December 1, 2009 Decision; DISMISS the Petition; and
ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a)
of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph
of Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus
Election Code.
1. The scope of the equal protection clause, 95 SCRA
2. Equal protection of the law, 13 SCRA 266
3. Requisites for a valid classificationRead:
1. People vs. Cayat, 68 Phil. 12
a.
b.
c.
d.

There must be real and substantial distinctions;

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

420

94

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

reform, July 14, 1989
4. Equal protection in generalRead:
1. P. vs. Vera, 65 Phil. 56
2. TIU VS. CA, 301 SCRA 278 (There is real and substantial distinction
between business inside the Subic Special Economic Zone and outside
wherein those inside are exempt from other taxes as a result of the policy
of the government to accelerate the development of the portion of Subic
left by the Americans)
3. IMELDA MARCOS VS. CA, 278 SCRA 843
4. HIMAGAN VS. PEOPLE, October 7, 1994
The fact that policemen charged with a criminal offense punishable
by more than 6 years are to be suspended during the entire duration of the
case unlike other government employees is valid since it rests on valid
classification because policemen carry weapons and the badge of the law
which can be used to harass or intimidate witnesses against them.
There is no violation of the equal protection
clause when the Compensation and
Classification Act of 1989 includes certain
allowances and fringe benefits into the
standardized salaries of most government
employees but not to police and military
personnel.
VICTORIA
C.
GUTIERREZ,
et
al
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT,
G.R. No. 153266, March 18, 2010
ABAD, J.:
These consolidated cases question the inclusion of certain allowances and
fringe benefits into the standardized salary rates for offices in the national
government, state universities and colleges, and local government units as
required by the Compensation and Position Classification Act of 1989 and
implemented through the challenged National Compensation Circular 59 (NCC
59) while the said allowances and other fringe benefits are not included insofar as
members of the police and military are concerned.
The Facts and the Case

95
Congress enacted in 1989 Republic Act (R.A.) 6758, called the
Compensation and Position Classification Act of 1989 to rationalize the
compensation of government employees. Its Section 12 directed the
consolidation of allowances and additional compensation already being enjoyed
by employees into their standardized salary rates. But it exempted certain
additional compensations that the employees may be receiving from such
consolidation. Thus:
Section 12. Consolidation of Allowances and
Compensation. -- All allowances, except for representation and
transportation allowances; clothing and laundry allowances;
subsistence allowance of marine officers and crew on board
government vessels and hospital personnel; hazard pay;
allowances of foreign service personnel stationed abroad; and
such other additional compensation not otherwise specified
herein as may be determined by the DBM, shall be deemed
included in the standardized salary rates herein prescribed.
Such other additional compensation, whether in cash or in
kind, being received by incumbents only as of July 1, 1989 not
integrated into the standardized salary rates shall continue to
be authorized.
The Issue:
Whether or not the grant of COLA to military
and police personnel to the exclusion of other
government employees violates the equal
protection clause.
The Courts Ruling
At the heart of the present controversy is Section 12 of R.A. 6758 as
quoted above. .
As will be noted from the first sentence above, all allowances were
deemed integrated into the standardized salary rates except the following:
(1)

representation and transportation allowances;

(2)

clothing and laundry allowances;

(3)

subsistence allowances of marine officers and crew on board

government vessels;

(4)

subsistence allowances of hospital personnel;

(5)

hazard pay;

(6)

allowances of foreign service personnel stationed abroad; and

96
(7)

such other additional compensation not otherwise specified in

Section 12 as may be determined by the DBM.

But, while the provision enumerated certain exclusions, it also authorized

the DBM to identify such other additional compensation that may be granted over
and above the standardized salary rates. In Philippine Ports Authority Employees
Hired After July 1, 1989 v. Commission on Audit, the Court has ruled that while
Section 12 could be considered self-executing in regard to items (1) to (6), it was
not so in regard to item (7). The DBM still needed to amplify item (7) since one
cannot simply assume what other allowances were excluded from the
standardized salary rates. It was only upon the issuance and effectivity of the
corresponding implementing rules and regulations that item (7) could be deemed
legally completed.
Clearly, COLA is not in the nature of an allowance intended to reimburse
expenses incurred by officials and employees of the government in the
performance of their official functions. It is not payment in consideration of the
fulfillment of official duty. As defined, cost of living refers to the level of prices
relating to a range of everyday items or the cost of purchasing those goods and
services which are included in an accepted standard level of consumption.
Based on this premise, COLA is a benefit intended to cover increases in the cost
of living. Thus, it is and should be integrated into the standardized salary rates.
Petitioners contend that the continued grant of COLA to military and
police
to the exclusion of other government employees violates the equal
protection clause of the Constitution.
But as respondents pointed out, while it may appear that petitioners are
questioning the constitutionality of these issuances, they are in fact attacking the
very constitutionality of Section 11 of R.A. 6758. It is actually this provision
which allows the uniformed personnel to continue receiving their COLA over and
above their basic pay, thus:
Section 11. Military and Police Personnel. - The base
pay of uniformed personnel of the Armed Forces of the
Philippines and the Integrated National Police shall be as
prescribed in the salary schedule for these personnel in R.A.
6638 and R.A. 6648. The longevity pay of these personnel shall
be as prescribed under R.A. 6638, and R.A. 1134 as amended
by R.A. 3725 and R.A. 6648: Provided, however, That the
longevity pay of uniformed personnel of the Integrated
National Police shall include those services rendered as
uniformed members of the police, jail and fire departments of
the local government units prior to the police integration.
All existing types of allowances authorized for
uniformed personnel of the Armed Forces of the Philippines
and Integrated National Police such as cost of living allowance,
longevity pay, quarters allowance, subsistence allowance,

97
clothing allowance, hazard pay and other allowances shall
continue to be authorized.
Nothing is more settled than that the constitutionality of a statute cannot
be attacked collaterally because constitutionality issues must be pleaded directly
and not collaterally.
In any event, the Court is not persuaded that the continued grant of COLA
to the uniformed personnel to the exclusion of other national government officials
run afoul the equal protection clause of the Constitution. The fundamental right
of equal protection of the laws 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
another. The classification must also be germane to the purpose of the law and
must apply to all those belonging to the same class.
To be valid and reasonable, the classification must satisfy the following
requirements: (1) it must rest on substantial distinctions; (2) it must be germane to
the purpose of the law; (3) it must not be limited to existing conditions only; and
(4) it must apply equally to all members of the same class.
It is clear from the first paragraph of Section 11 that Congress intended the
uniformed personnel to be continually governed by their respective compensation
laws. Thus, the military is governed by R.A. 6638, as amended by R.A. 9166
while the police is governed by R.A. 6648, as amended by R.A. 6975.
Certainly, there are valid reasons to treat the uniformed personnel
differently from other national government officials. Being in charged of the
actual defense of the State and the maintenance of internal peace and order, they
are expected to be stationed virtually anywhere in the country. They are likely to
be assigned to a variety of low, moderate, and high-cost areas. Since their basic
pay does not vary based on location, the continued grant of COLA is intended to
help them offset the effects of living in higher cost areas.
2-A Gumabon vs. Director of Prisons, 37 SCRA 420
2-b. PANFILO LACSON VS. SANDIGANBAYAN, January 20, 1999
2-b-1. BASCO VS. PAGCOR, May 14, 1991
No violation of the equal protection clause if Congress would
legalize cock-fighting and horse racing since police power could regulate
gambling.
3. PHILIPPINE JUDGES ASSOCIATION VS. PRADO, November 11, 1993
There is no valid distinction for a law removing the franking
privilege of the judiciary while leaving the same to the Executive and
Legislative despite the fact that there is considerable volume of mails from
the courts. Loss of revenue is not a valid ground unless it would be
withdrawn to all government offices.

98

FRANCISCO TATAD vs. THE SECRETARY OF DEPARTMENT

OF ENERGY, G. R. No. 124360, November 5, 1997
EDCEL LAGMAN, JOKER ARROYO, ENRIQUE GARCIA,
WIGBERTO TANADA, FLAG HUMAN RIGHTS FOUNDATION
vs. HON. RUBEN TORRES, HON. FRANCISCO VIRAY, PETRON,
FILIPINAS SHELL and CALTEX PHILIPPINES, G.R. No. 127867,
November 5, 1997.
PUNO, J.
These petitions challenge the constitutionality of Republic Act No. 8180
entitled An Act Deregulating the Downstream Oil Industry and for Other
Purposes. RA 8180 seeks to end 26 years of government regulation of
the downstream oil industry.
The facts:
1. Prior to 1971, no government agency was regulating the oil industry. New
players were free to enter the oil market without any government
interference. There were four (4) refining companies at that time. SHELL,
CALTEX, BATAAN REFINING COMPANY and FILOIL MARKETING
and six (6) petroleum marketing companies: ESSO, FILOIL, CALTEX,
GETTY, MOBIL and SHELL;
2. In 1971, the country was driven to its knees by the crippling oil crisis and
in order to remedy the same, the OIL INDUSTRY COMMISSION ACT
was enacted REGULATING the oil industry ;
3. On November 9, 1973, then President Marcos created the Philippine
national Oil Corporation (PNOC) t break the control of the foreigners to
the oil industry. It acquired ownership of ESSO Philippines and Filoil and
likewise bought controlling shares of the Bataan Refining Corporation.
PNOC then operated under the business name PETRON CORPORATION
and for the first time, there was a Filipino presence in the Philippine oil
market;
4. In 1984, Pres. Marcos through section 8 of PD 1956 created the OIL
PRICE STABILIZATION FUND (OPSF) to cushion the effects of
frequent changes in the price of oil caused by the exchange rate
adjustments or increase of the world market prices crude oil and imported
petroleum products;
5. By 1985, only three (3) oil companies were left operating in the country.
These are: CALTEX, FILIPINAS SHELL and PNOC;
6. In May, 1987, Pres. Corazon Aquino signed Executive Order No. 172
creating the ENERGY REULATORY BOARD to regulate the business of
importing, exporting, shipping, transporting, processing, refining,
marketing and distributing energy resources WHEN WARRANTED
AND ONLY WHEN PUBLIC NECESSITY REQUIRES. The Board

99
was empowered to fix and regulate the prices of petroleum products and
other related merchandise;
7. In March, 1996, Congress enacted RA 8180 deregulating the Oil Industry
not later than March, 1997. The law requires that the implementation of
the regulation, shall as far as practicable be made at a time WHEN THE
PRICES OF CRUDE OIL AND PETROLEUM PRODUCTS IN THE
WORLD ARE DECLINING AND WHEN THE EXCHANGE RATE OF
THE PESO IN RELATION TO THE US DOLLAR; IS STABLE;
8. On February 8, 1997, Executive Order No. 372 was issued by President
Fidel Ramos implementing full deregulation ON THE GROUND THAT
THE OPSF FUND HAS BEEN DEPLETED;
9. The petitioners questioned the constitutionality of RA 8180 on the
following grounds:
a.
b.

c.
d.

e.

Section 5 of RA 8180 violates the equal protection clause of

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

The provisions of the law being questioned as unconstitutional are Section

5 [b] and Section 15 which provide:
Section 5 [b] Any law to the contrary notwithstanding
and starting with the effectivity of this Act, tariff duty shall
be imposed and collected on imported crude oil at the rate
of 3% and imported refined petroleum products at the rate
of seven (7%) percent, except fuel oil and LPG, the rate for
which shall be the same; Provided, that beginning on
January 1, 2004, the tariff rate on imported crude oil and
refined petroleum products shall be the same; Provided,
further, that this provision may be amended only by an Act
of Congress.

100

xxx
Section 15. Implementation of
full deregulation.
Pursuant to Section 5 [e] of RA 7638, the DOE, upon
approval of the President, implement full deregulation of
the downstream oil industry not later than March, 1997.
As far as practicable, the DOE shall time the full
deregulation when the prices of crude oil and petroleum
products in the world market are declining and when the
exchange rate of the peso in relation to the US dollar is
stable.
The issues are:
Procedural Issues:
a. Whether or not the petitions raise justiciable controversy; and
b. Whether or not the petitioners have the standing to question the validity
of the subject law and executive order.
Substantive Issues:
a. Whether or not Section 5 of RA 8180 violates the one titleone subject
requirement of the Constitution;
b. Whether or not Section 5 of RA 8180 violates the equal protection clause
of the Constitution;
c. Whether section 15 violates the constitutional prohibition on undue
delegation of legislative power;
d. Whether or not EO 392 is arbitrary and unreasonable; and
e. Whether or not RA 8180 violates the constitutional prohibition against
monopolies, combinations in restraint of trade and unfair competition.
HELD:
1. Judicial power includes not only the duty of the courts to settle
controversies involving rights but also the duty to determine whether or
not there has been grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any agency or branch of the government. The
courts, as guardians of the Constitution, have the inherent authority to
determine whether a statute enacted by the legislature transcends the limit
imposed by the fundamental law. When the statute violates the
Constitution, it is not only the right of the judiciary to declare such act as
unconstitutional and void.
2. The question of locus standi must likewise fall . As held in KAPATIRAN
NG MGA NAGLILINGKOD SA PAMAHALAAN NG PILIPINAS, INC.
VS. TAN, it was held that:

101
Objections to taxpayers suit for lack of sufficient personality, standing,
or interest are , however, in the main procedural matters. CONSIDERING
THE IMPORTANCE OF THE CASES TO THE PUBLIC, AND IN
KEEPING WITH THE COURTS DUTY TO DETERMINE WHETHER
OR NOT THE OTHER BRANCHEDS OF GOVERNMENT HAVE
KEPT THEMSELVES
WITHIN THE
LIMITS
OF THE
CONSTITUTION AND THE LAWS AND THAT THEY HAVE NOT
ABUSE THE DISCRETION GIVEN TO THEM, THE COURT HAS
BRUSHED ASIDE TECHNICALITIES OF PROCEDURE AND HAS
TAKEN COGNIZANCE OF THESE PETITIONS.
There is no disagreement on the part of the parties as to the far-reaching
importance of the validity of RA 8180. Thus, there is no good sense in
being hyper-technical on the standing of the petitioners for they pose
issues which are significant to our people and which deserve our forthright
resolution.
3. It is contended that Section 5[b[ of RA 8180 on tariff differentials violates
the Constitutional prohibition requiring every law to have only one subject
which should be expressed in its title. We do not concur with this
contention. As a policy, the Court has adopted a liberal construction of the
one title---one subject rule. We have consistently ruled that the title need
not mirror, fully index or catalogue all contents and minute details of a
law. A law having a single general subject indicated in the title may
contain a number of provisions, no matter how diverse they may be, so
long as they are not inconsistent with or foreign to the general subject, and
may be considered in furtherance of such subject by providing for the
method and means of carrying out the general subject. We hold that
Section 5 providing for tariff differential is germane to the subject of RA
8180 which is the deregulation of the downstream oil industry.
4. The contention that there is undue delegation of legislative power when it
authorized the President to determine when deregulation starts is without
merit. The petitioners claim that the phrases as far as practicable,
decline of crude oil prices in the world market and stability of the peso
exchange rate to the US dollar are ambivalent, unclear and inconcrete in
meaning and could not therefore provide the determinate or determinable
standards which can guide the President in his decision to fully
deregulate the oil industry. The power of Congress to delegate the
execution of laws has long been settled by this Court in 1916 in the case of
COMPANIA GENERAL DE TABACOS DE FILIPINA VS. THE
BOARD OF PUBLIC UTILITY COMMISSIONERS WHERE IT WAS
HELD THAT:
The true distinction is between the delegation of power to make the law ,
which necessarily involves a discretion as to what it shall be, and
conferring authority or discretion as to its execution, to be exercised under
and in pursuance of the law. The first cannot be done; to the latter, no valid
objection can be made.

102

Two tests have been developed to determine whether the

delegation of the power to execute laws does not involve the abdication of
the power to make law itself. We delineated the metes and bounds of these
tests in EASTERM SHIPPING LINES VS. POEA, thus:
There are two accepted tests to determine whether or not there is a valid
delegation of legislative power , viz: the completeness test and the
sufficiency of standard test. Under the first test, the law must be complete
in all its terms and conditions when it leaves the legislative such that when
it reaches the delegate, the only thing he will do is enforce it. Under the
sufficient standard test, there must be adequate guidelines or limitations in
the law to map out the boundaries of the delegates authority and prevent
the delegation from running riot. BOTH TESTS ARE INTENDED TO
PREVENT A TOTAL TRANSFERENCE OF LEGISLATIVE
AUTHORITY TO THE DELEGATE, WHO IS NOT ALLOWED TO
STEP INTO THE SHOES OF THE LEGISLATURE AND EXERCISE A
POWER ESSENTIALLY LEGISLATIVE.
The validity of delegating legislative power is now a quiet area in our
constitutional landscape because such has become an inevitability in light
of the increasing complexity of the task of government. In fact, in
HIRABAYASHI VS. UNITED STATES, the Supreme Court through
Justice ISAGANI CRUZ held that even if the law does not expressly
pinpoint the standard, THE COURTS WILL BEND BACKWARD TO
LOCATE THE SAME ELSEWHERE IN ORDER TO SPARE THE
STATUTE; IF IT CAN, FROM CONSTITUTIONAL INFIRMITY.
5. EO No. 392 failed to follow faithfully the standards set by RA 8180
when it considered the extraneous factor of depletion of the OPSF Fund.
The misapplication of this extra factor cannot be justified. The executive is
bereft of any right to alter either by addition or subtraction the standards
set by RA 8180 for it has no power to make laws. To cede to the executive
the power to make laws would invite tyranny and to transgress the
separation of powers. The exercise of delegated power is given a strict
scrutiny by courts for the delegate is a mere agent whose action cannot
infringe the terms of the agency.
6. Section 19 of Article XII of the Constitution provides:
The state shall regulate or prohibit monopolies when the public interests
so requires. No combinations in restraint of trade or unfair competition
shall be allowed.
A monopoly is a privilege or peculiar advantage vested in one or more
persons or companies, consisting of the exclusive right or power to carry
on a particular business or trade, manufacture a particular article or control
the sale or the whole market structure in which one or only a few firms
dominate the total sales of a product or service. On the other hand, a

103
combination in restraint of trade is an agreement or understanding between
two or more persons, in the form of contract, trust, pool, holding company,
for the purpose of unduly restricting competition, monopolizing trade and
commerce in a certain commodity, controlling its production, distribution
and price or otherwise interfering with freedom of trade without statutory
authority. Combination in restraint of trade refers to means while
monopoly refers to the end.
Respondents aver that the 4% tariff differential is designed to encourage
new entrants to invest in refineries. They stress that the inventory
requirement is meant to guaranty continuous domestic supply of
petroleum and to discourage fly-by-night operators. They also claim that
the prohibition against predatory pricing is intended to protect prospective
entrants.
The validity of the assailed provisions of RA 8180 has to be decided in the
light of the letter and spirit of Section 19, Art. XII of the Constitution.
While the Constitution embraced free enterprise as an economic creed, it
did not prohibit per se the operation of monopolies which can, however,
be regulated in the public interest. This distinct free enterprise system is
dictated by the need to achieve the goals of our national economy as
defined under Section 1, Art. XII of the Constitution which are: more
equitable distribution of opportunities, income and wealth; a sustained
increase in the amount of goods and services produced by the nation for
all, especially the underprivileged . It also calls for the State to protect
Filipino enterprises against unfair and trades practices.
The provisions on 4% tariff differential, predatory pricing and inventory
requirement blocks the entry of other players and give undue advantage to
the 3 oil companies resulting to monopolies or unfair competition. This is
so because it would take billions for new players to construct refineries,
and to have big inventories. This would effectively prevent new players.
In the case at bar, it cannot be denied that our oil industry is operated and
controlled by an oligopoly (dominated by a handful of players) and a
foreign oligopoly at that. As the dominant players, SHELL, CALTEX &
PETRON boast of existing refineries of various capacities. The tariff
differential of 4% works to their immense advantage. Yet, this is only one
edge on tariff differential. THE OTHER EDGE CUTS AND CUTS DEEP
IN THE HEART OF THEIR COMPETITORS. IT ERECTS HIGH
BARRIERS TO NE PLAYERS. New players in order to equalize must
build their refineries worth billions of pesos. Those without refineries had
to compete with a higher cost of 4%.They will be competing on an uneven
field.
The provision on inventory widens the advantage of PETRON, SHELL
AND CALTEX against prospective new players. The three (3) could
easily comply with the inventory requirement in view of their numerous
storage facilities. Prospective competitors again find compliance oft his

104
requirement difficult because of prohibitive cost in constructing new
storage facilities. The net effect would be to effectively prohibit the
entrance of new players.
Now comes the prohibition on predatory pricing or selling or offering to
sell any product at a price unreasonably below the industry average cost so
as to attract customers to the detriment of the competitors. According to
HOVENKAMP:
The rationale for predatory pricing is the sustaining of losses today
that will give a firm monopoly profits in the future. The monopoly
profits will never materialize, however, if the market is flooded with
new entrants as soon as the successful predator attempts to raise its
price. Predatory pricing will be profitable only if the market contains
significant barriers to new entry.
Coupled with the 4% tariff differential and the inventory requirement, the
predatory pricing is a significant barrier which discourage new players to
enter the oil market thereby promoting unfair competition, monopoly and
restraint of trade which are prohibited by the Constitution.
2-d.LACSON VS. SANDIGANBAYAN, January 20, 1999
3. Taxicab Operators vs. BOT, September 30,l982
4. Bautista vs. Juinio,127 SCRA 329
5. Dumlao vs. COMELEC, 95 SCRA 392
6. Villegas vs. Hiu, 86 SCRA 270
7. Ceniza vs. COMELEC, 95 SCRA 763
8. UNIDO vs. COMELEC, 104 SCRA 38
9. Nunez vs. Sandiganbayan, 111 SCRA 433(Read also the dissenting
opinion of Justice Makasiar
10. Sison vs. Ancheta, 130 SCRA 654
11. Citizens Surety vs. Puno, 119 SCRA 216
12. Peralta vs. COMELEC, 82 SCRA 30
13. Hawaiian-Phil. Co. vs. Asociacion, 151 SCRA 306
14. Ormoc Sugar Co. vs. Ormoc City, 22 SCRA 603
15. Flores vs. COMELEC, 184 SCRA 484
CHAPTER IV - THE SEARCH
AND SEIZURE PROVISION

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

persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after
examination under oath or affirmation of the

105
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the
persons or things to be seized.
NOTE: Applicable provisions of the Human Security Act/AntiTerrorism Law, Republic Act No. 9372, Approved on March 6,
2007 and effective on July 15, 2007 (This Law shall be
automatically suspended one (1) month before and two (2) months
after the holding of any election)
Sec. 18. Period of detention without judicial warrant of arrest.- The
provisions of Article 125 of the Revised Penal Code,
notwithstanding, any police or law enforcement personnel, who,
having been duly authorized in writing by the Anti-Terrorism
Council has taken custody of a person charged with or suspected
of the crime of terrorism or the crime of conspiracy to commit
terrorism shall, WITHOUT INCURRING ANY CRIMINAL
LIABILITY FOR DELAY IN THE DELIVERY OF DETAINED
PERSONS TO THE PROPER JUDICIAL AUTHORITIES,
DELIVER SAID CHARGED OR SUSPECTED PERSON TO
THE PROPER JUDICIAL AUTHORITY WITHIN A PERIOD OF
THREE (3) DAYS counted from the moment said charged or
suspected person has been apprehended or arrested, detained, and
taken into custody by the said police, or law enforcement
personnel: Provided, That the arrest of those suspected of the crime
of terrorism or conspiracy to commit terrorism must result from the
surveillance under Section 7 and examination of bank deposits
under Section 27 pf this Act.
The police or law enforcement personnel concerned shall,
before detaining the person suspected of the crime of terrorism,
present him or her before any judge at the latters residence or
office nearest the place where the arrest took place at any time of
the day or night. It shall be the duty of the judge, among other
things, to ascertain the identity of the police or law enforcement
personnel and the person or persons they have arrested and
presented before him or her, to inquire of them the reasons why
they have arrested the person and determine by questioning and
personal observation whether or not the subject has been subjected
to any physical, moral or psychological torture by whom and why.
The judge shall then submit a written report of what he/she had
observed when the subject was brought before him to the proper
court that has jurisdiction over the case of the person thus arrested.
The judge shall forthwith submit his report within 3
calendar days from the time the suspect was brought to his/her
residence or office.

106
Immediately after taking custody of a person charged with
or suspected of the crime of terrorism or conspiracy to commit
terrorism, the police or law enforcement personnel shall notify in
writing the judge of the court nearest the place of apprehension or
arrest; provided, That where the arrest is made during Saturdays,
Sundays, holidays or after office hours, the written notice shall be
served at the residence of the judge nearest the place where the
accused was arrested. The penalty of 10 years and 1 day to 12
years imprisonment shall be imposed upon the police or law
enforcement personnel who fails to notify any judge as provided in
the preceding paragraph.
Section 19. Period of Detention in the event of an actual or
imminent terrorist attack.- In the vent of an actual or imminent
terrorist attack,, suspects may not be detained for more than three
days without the written approval of a municipal, city, provincial
or regional official of a Human Rights Commission, or judge of the
municipal, regional trial court, the Sandiganbayan or a justice of
the Court of Appeals nearest the place of arrest. If the arrest is
made during Saturdays, Sundays or holidays, or after office hours,
the arresting police of law enforcement personnel shall bring the
person thus arrested to the residence of any of the officials
mentioned above that is nearest the place where the accused was
arrested. The approval in writing of any of the said officials shall
be secured by the police or law enforcement personnel concerned
within five days after the date of the detention of the persons
concerned; Provided, however, That within three days after the
detention the suspects whose connection with the terror attack or
threat is not established, shall be released immediately.
Section 26 provides that persons who have been charged
with terrorism or conspiracy to commit terrorism---even if they
have been granted bail because evidence of guilt is not strongcan
be:

Detained under house arrest;

Restricted from traveling; and/or
Prohibited from using any cellular phones, computers, or other
means of communications with people outside their residence.
Section 39. Seizure and Sequestration.- The deposits and their
outstanding balances, placements, trust accounts, assets, and
records in any bank or financial institution, moneys, businesses,
transportation and communication equipment, supplies and other
implements, and property of whatever kind and nature belonging:

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

or conspiracy to commit terrorism;

107

to a judicially declared and outlawed terrorist organization or

group of persons;
to a member of such judicially declared and outlawed organization,
association or group of persons,
-shall be seized, sequestered, and frozen in order to prevent their
use, transfer or conveyance for purposes that are inimical to the
safety and security of the people or injurious to the interest of the
State.
The accused or suspect may withdraw such sums as are reasonably
needed by his family including the services of his counsel and his
familys medical needs upon approval of the court. He or she may
also use any of his property that is under seizure or sequestration or
frozen because of his/her indictment as a terrorist upon permission
of the court for any legitimate reason.
Section 40. The seized, sequestered and frozen bank deposits
shall be deemed property held in trust by the bank or financial
institution and that their use or disposition while the case is
pending shall be subject to the approval of the court before which
the case or cases are pending.
Section 41. If the person suspected as terrorist is acquitted after
arraignment or his case dismissed before his arraignment by a
competent court, the seizureshall be lifted by the investigating
body or the competent court and restored to him without delay. The
filing of an appeal or motion for reconsideration shall not stay the
release of said funds from seizure, sequestration and freezing.
If convicted, said seized, sequestered and frozen assets
shall automatically forfeited in favor of the government.

Requisites of a valid search warrant

Read:
a. Essentials of a valid search warrant,145 SCRA

739

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

obtained in
violation thereof.
c. The place to be searched as indicated in the warrant is controlling
PEOPLE VS. CA, 291 SCRA 400
Narvasa, CJ
In applying for a search warrant, the police officers had in their
mind the first four (4) separate apartment units at the rear of ABIGAIL

108
VARIETY STORE in Quezon City to be the subject of their search. The
same was not, however, what the Judge who issued the warrant had in
mind, AND WAS NOT WHAT WAS ULTIMATELY DESCRIBED IN
THE SEARCH WARRANT. As such, any evidence obtained from the
place searched which is different from that indicated in the search warrant
is inadmissible in evidence for any purpose and in any proceeding.
This is so because it is neither licit nor fair to allow police officers
to search a place different from that stated in the warrant on the claim that
the place actually searched---although not that specified in the search
warrant---is exactly what they had in view when they applied for the
warrant and had demarcated in their supporting evidence. WHAT IS
MATERIAL IN DETERMINING THE VALIDITY OF A SEARCH IS
THE PLACE STATED IN THE WARRANT ITSELF, NOT WHAT THE
APPLICANTS HAD IN THEIR THOUGHTS, OR HAD
REPRESENTED IN THE PROOFS THEY SUBMITTED TO THE
COURT ISSUING THE WARRANT. As such, it was not just a case of
obvious typographical error, but a clear case of a search of a place
different from that clearly and without ambiguity identified in the search
warrant.
NOTE: Very Important: Where a search warrant is issued by one
court and the criminal action base don the results of the search is
afterwards commenced in another court, IT IS NOT THE RULE THAT A
MOTION TO QUASH THE WARRANT (or to retrieve the things seized)
MAY BE FILED ONLY IN THE ISSUING COURT---SUCH A MOTION
MAY BE FILED FOR THE FIRST TIME IN EITHER THE ISSUING
COURT OR THAT IN WHICH THE CRIMINAL PROCEEDING IS
PENDING.
d. Validity of a warrantless search and seizure as a result of an
informers tip. Note the two (2) conflicting decisions of the Supreme
Court.
PEOPLE VS. ARUTA, 288 SCRA 626
On December 13, 1988, P/Lt. Abello of the Olongapo PNP was
tipped off by an informer that Aling Rosa would be arriving from Baguio
City the following day with a large volume of marijuana. As a result of
the tip, the policemen waited for a Victory Bus from Baguio City near the
PNB Olongapo, near Rizal Ave. When the accused got off, she was
pointed to by the informer. She was carrying a traveling bag at that time.
She was not acting suspiciously. She was arrested without a warrant.
The bag allegedly contained 8.5 kilos of marijuana. After trial, she
was convicted and imposed a penalty of life imprisonment.
Issue:

109
Whether or not the marijuana allegedly taken from the accused is
admissible in evidence.
Held:
Warrantless search is allowed in the following instances:
1.
2.
3.
4.
5.
6.

customs searches;
searches of moving vehicle;
seizure of evidence in plain view;
consented searches;
search incidental to a lawful arrest; and
stop and frisk measures.
The above exceptions to the requirement of a search warrant,
however, should not become unbridled licenses for law enforcement
officers to trample upon the conditionally guaranteed and more
fundamental right of persons against unreasonable search and seizures.
The essential requisite of probable cause must still be satisfied before a
warrantless search and seizure can be lawfully conducted. In order that the
information received by the police officers may be sufficient to be the
basis of probable cause, it must be based on reasonable ground of
suspicion or belief a crime has been committed or is about to be
committed.
The marijuana obtained as a result of a warrantless search is
inadmissible as evidence for the following reasons:

a. the policemen had sufficient time to apply for a search warrant but they
failed to do so;
b. the accused was not acting suspiciously;
c. the accuseds identity was previously ascertained so applying for a warrant
should have been easy;
d. the accused in this case was searched while innocently crossing a street
Consequently, there was no legal basis for the police to effect a
warrantless search of the accuseds bag, there being no probable cause and
the accuseds not having been legally arrested. The arrest was made only
after the accused was pointed to by the informant at a time when she was
not doing anything suspicious. The arresting officers do not have personal
knowledge that the accused was committing a crime at that time.
Since there was no valid warrantless arrest, it logically follows that
the subsequent search is similarly illegal, it being not incidental to a lawful
arrest. This is so because if a search is first undertaken, and an arrest
effected based on the evidence produced by the search, both such search
and arrest would be unlawful, for being contrary to law.

110
This case is similar tot he case of PEOPLE VS. AMINNUDIN,
and PEOPLE VS. ENCINADA.
PEOPLE VS. MONTILLA, 284 SCRA 703
On June 19, 1994, at about 2 p.m., SPO1 Talingting and SPO1
Clarin of the Dasmarinas, Cavite PNP were informed by an INFORMER
that a drug courier would be arriving in Barangay Salitran, Dasmarinas,
Cavite, from Baguio City, with an undetermined amount of marijuana. The
informer likewise informed them that he could recognize said person.
At about 4 in the morning of June 20, 1994, the appellant was
arrested by the above-named police officers while alighting from a
passenger jeepney near a waiting shed in Salitran, Dasmarinas, Cavite,
upon being pointed to by the informer. The policemen recovered 28 kilos
of dried marijuana leaves. The arrest was without warrant.
The trial court convicted the appellant for transporting marijuana
based on the testimonies of the Above-named police officers without
presenting the alleged informer.
Issue:
Was the warrantless arrest valid?
Held:
The accused claims that the warrantless search and seizure is
illegal because the alleged information was received by the police on June
19, 1994 and therefore, they could have applied for a search warrant. The
said contention is without merit considering that the information given by
the informer is too sketchy and not detailed enough for the obtention of
the corresponding arrest or search warrant. While there is indication that
the informer knows the courier, the records do not show that he knew his
name. On bare information, the police could not have secured a warrant
from a judge.
Furthermore, warrantless search is allowed in the following
instances:
1.
2.
3.
4.
5.
6.

customs searches;
searches of moving vehicle;
seizure of evidence in plain view;
consented searches;
search incidental to a lawful arrest; and
stop and frisk measures.
Since the accused was arrested for transporting marijuana, the
subsequent search on his person is justified. An arresting officer has the

111
right to validly search and seize from the offender (1) dangerous weapons;
and (2) those that may be used as proof of the commission of the offense.
In the case at bar, upon being pointed to by the informer as the
drug courier, the policemen requested the accused to open and show them
the contents of his bag and the cartoon he was carrying and he voluntarily
opened the same and upon cursory inspection, it was found out that it
contains marijuana. Hence the arrest.
The accused insists that it is normal for a person traveling with a
bag and cartoon which should not elicit the slightest suspicion that he was
committing a crime. In short, there was no probable cause for this
policemen to think that he was committing a crime.
The said contention was considered without merit by the Supreme
Court considering the fact that he consented to the search as well as the
fact that the informer was a reliable one who had supplied similar
information to the police in the past which proved positive.
(NOTE: The SC held that the non-presentation of the informer
does not affect the case for the prosecution because he is not even the best
witness. He is merely a corroborative witness to the arresting officers. )
JUSTICE PANGANIBAN:
To say that reliable tips from informers constitute probable cause
for a warrantless arrest or search IS A DANGEROUS PRECEDENT AND
PLACES IN GREAT JEOPARDY THE DOCTRINES LAID DOWN IN
MANY DECISIONS MADE BY THIS COURT. (PEOPLE VS.
BURGOS, 144 SCRA 1; PEOPLE VS. AMINNUDIN, 163 SCRA 402;
PEOPLE VS. ENCINADA, October 2, 1997; PEOPLE VS. MENGOTE,
220 SCRA).
The case is similar to the case of People vs. Encimada where the
appellant was searched without a warrant while disembarking from a ship
on the strength of a tip from an informer received by the police the
previous afternoon that the appellant would be transporting prohibited
drugs. The search yielded a plastic package containing marijuana. On
Appeal, the SC reversed the decision of conviction and held that Encinada
did not manifest any suspicious behavior that would necessarily and
reasonably invite the attention of the police.
Warrantless Arrest, search and seizure in
buy-bust operations.
PEOPLE OF THE PHILIPPINES VS. SPO3 SANGKI
ARA, et al., G.R. No. 185011, December 23, 2009

112
VELASCO, JR., J.:
This is an appeal from the December 13, 2007 Decision of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 00025B entitled People of the
Philippines v. SPO3 Sangki Ara y Mirasol, Mike Talib y Mama, Jordan Musa y
Bayan, which affirmed the Decision of the Regional Trial Court (RTC), Branch 9
in Davao City, convicting accused-appellants of violation of Republic Act No.
(RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.
The Facts
Criminal Case No. 51,471-2002 against Ara
That on or about December 20, 2002, in the City of Davao,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, without being authorized by law, willfully,
unlawfully and consciously traded, transported and delivered
26.6563 grams of Methamphetamine Hydrochloride or shabu,
which is a dangerous drug, with the aggravating circumstance of
trading, transporting and delivering said 26.6563 grams of shabu
within 100 meters from [the] school St. Peters College of Toril,
Davao City.
CONTRARY TO LAW.
During their arraignment, accused-appellants all gave a not guilty plea.
Version of the Prosecution
In the morning of December 20, 2002, a confidential informant (CI) came
to the Heinous Crime Investigation Section (HCIS) of the Davao City Police
Department and reported that three (3) suspected drug pushers had contacted him
for a deal involving six (6) plastic sachets of shabu. He was instructed to go that
same morning to St. Peters College at Toril, Davao City and look for an orange
Nissan Sentra car.
Police Chief Inspector Fulgencio Pavo, Sr. immediately formed a buy-bust
team composed of SPO3 Reynaldo Capute, SPO4 Mario Galendez, SPO3 Antonio
Balolong, SPO2 Arturo Lascaos, SPO2 Jim Tan, SPO1 Rizalino Aquino, SPO1
Bienvenido Furog, PO2 Vivencio Jumawan, Jr., PO2 Ronald Lao, and PO1
Enrique Ayao, Jr., who would act as poseur-buyer.
The team proceeded to the school where PO1 Ayao and the CI waited by the
gate. At around 8:45 a.m., an orange Nissan Sentra bearing plate number UGR
510 stopped in front of them. The two men approached the vehicle and the CI
talked briefly with an old man in the front seat. PO1 Ayao was then told to get in
the back seat as accused-appellant Mike Talib opened the door. The old man, later
identified as accused-appellant SPO3 Ara, asked PO1 Ayao if he had the money
and the latter replied in the positive. Ara took out several sachets with crystalline

113
granules from his pocket and handed them to PO1 Ayao, who thereupon gave the
pre-arranged signal of opening the car door. The driver of the car, later identified
as accused-appellant Jordan Musa, tried to drive away but PO1 Ayao was able to
switch off the car engine in time. The back-up team appeared and SPO1 Furog
held on to Musa while PO2 Lao restrained Talib. PO1 Ayao then asked Ara to get
out of the vehicle.
Recovered from the group were plastic sachets of white crystalline
substance: six (6) big sachets, weighing 26.6563 grams, from Ara by PO1 Ayao;
five (5) big sachets, weighing 14.2936 grams, from Musa by SPO1 Furog; and a
small sachet, weighing 0.3559 gram, from Talib by PO2 Lao.
The three suspects were brought to the HCIS and the seized items indorsed
to the Philippine National Police (PNP) Crime Laboratory for examination.
Forensic Chemist Austero, who conducted the examination, found that the
confiscated sachets all tested positive for shabu.
Version of the Defense
The defense offered the sole testimony of Ara, who said that he had been a
member of the PNP for 32 years, with a spotless record. On December 20, 2002,
SPO3 Ara was in Cotabato City, at the house of his daughter Marilyn, wife of his
co-accused Musa. He was set to go that day to the Ombudsmans Davao City
office for some paperwork in preparation for his retirement on July 8, 2003. He
recounted expecting at least PhP 1.6 million in retirement benefits. Early that
morning, past three oclock, he and Musa headed for Davao City on board the
latters car. As he was feeling weak, Ara slept in the back seat.
Upon reaching Davao City, he was surprised to see another man, Mike
Talib, in the front seat of the car when he woke up. Musa explained that Talib had
hitched a ride on a bridge they had passed.
When they arrived in Toril, Ara noticed the car to be overheating, so they
stopped. Ara did not know that they were near St. Peters College since he was
not familiar with the area. Talib alighted from the car and Ara transferred to the
front seat. While Talib was getting into the back seat, PO1 Ayao came out of
nowhere, pointed his .45 caliber pistol at Ara even if he was not doing anything,
and ordered him to get off the vehicle. He saw that guns were also pointed at his
companions. As the group were being arrested, he told PO1 Ayao that he was also
a police officer. Ara insisted that he was not holding anything and that the shabu
taken from him was planted. He asserted that the only time he saw shabu was on
television.
The Ruling of the Trial Court
The dispositive portion of the RTC Decision reads:
WHEREFORE, premised on the foregoing the Court finds
the following:

114

In Criminal Case No. 51,471-2002, the accused herein

SANGKI ARA Y MASOL, Filipino, 55 years old, widower, a
resident of Kabuntalan, Cotabato City, is hereby found GUILTY
beyond reasonable doubt, and is CONVICTED of the crime of
violation of Sec. 5, 1st paragraph of Republic Act 9165. He is
hereby imposed the DEATH PENALTY and FINE of TEN
MILLION PESOS (PhP 10,000,000) with all the accessory
penalties corresponding thereto, including absolute perpetual
disqualification from any public office, in view of the provision of
section 28 of RA 9165 quoted above.
Since the prosecution proved beyond reasonable doubt that
the crime was committed in the area which is only five (5) to six
(6) meters away from the school, the provision of section 5
paragraph 3 Article II of RA 9165 was applied in the imposition of
the maximum penalty against the herein accused.
In Criminal Case No. 51,472-2002, the accused herein
MIKE TALIB y MAMA, Filipino, of legal age, single and a
resident of Parang, Cotabato, is found GUILTY beyond reasonable
doubt, and is CONVICTED of the crime of violation of Sec. 11,
3rd paragraph, Article II of Republic Act 9165. He is hereby
imposed a penalty of Imprisonment of SIXTEEN (16) YEARS and
a fine of THREE HUNDRED THOUSAND PESOS (PhP 300,000)
with all the accessory penalties corresponding thereto.
In Criminal Case No. 51,473-2002 the accused herein
JORDAN MUSA Y BAYAN, Filipino, 30 years old, married and a
resident of Cotabato City, is hereby found GUILTY beyond
reasonable doubt and is CONVICTED of the crime for Violation of
Sec. 11, 1st paragraph, Article II of Republic Act No. 9165. He is
hereby sentenced to suffer a penalty of LIFE IMPRISONMENT
and FINE of FOUR HUNDRED THOUSAND PESOS (PhP
400,000) with all the accessory penalties corresponding thereto.
SO ORDERED.
As the death penalty was imposed on Ara, the case went on automatic
review before this Court. Conformably with People v. Mateo, we, however,
ordered the transfer of the case to the CA.
The Issue
Whether the Court of Appeals erred in holding that the arrest of the
accused-appellants was valid based on the affidavits of the
complaining witnesses
Warrantless Arrest and Seizure Valid

115
In calling for their acquittal, accused-appellants decry their arrest without
probable cause and the violation of their constitutional rights. They claim that the
buy-bust team had more than a month to apply for an arrest warrant yet failed to
do so.
Owing to the special circumstances surrounding the drug trade, a buy-bust
operation has long been held as a legitimate method of catching offenders. It is a
form of entrapment employed as an effective way of apprehending a criminal in
the act of commission of an offense. We have ruled that a buy-bust operation can
be carried out after a long period of planning. The period of planning for such
operation cannot be dictated to the police authorities who are to undertake such
operation. It is unavailing then to argue that the operatives had to first secure a
warrant of arrest given that the objective of the operation was to apprehend the
accused-appellants in flagrante delicto. In fact, one of the situations covered by a
lawful warrantless arrest under Section 5(a), Rule 113 of the Rules of Court is
when a person has committed, is actually committing, or is attempting to commit
an offense in the presence of a peace officer or private person.
It is erroneous as well to argue that there was no probable cause to arrest
accused-appellants. Probable cause, in warrantless searches, must only be based
on reasonable ground of suspicion or belief that a crime has been committed or is
about to be committed. There is no hard and fast rule or fixed formula for
determining probable cause, for its determination varies according to the facts of
each case. Probable cause was provided by information gathered from the CI and
from accused-appellants themselves when they instructed PO1 Ayao to enter their
vehicle and begin the transaction. The illegal sale of shabu inside accusedappellants vehicle was afterwards clearly established. Thus, as we have
previously held, the arresting officers were justified in making the arrests as
accused-appellants had just committed a crime when Ara sold shabu to PO1
Ayao. Talib and Musa were also frisked for contraband as it may be logically
inferred that they were also part of Aras drug activities inside the vehicle. This
inference was further strengthened by Musas attempt to drive the vehicle away
and elude arrest.
Moreover, the trial court correctly denied the Motion to Suppress or
Exclude Evidence. We need not reiterate that the evidence was not excluded since
the buy-bust operation was shown to be a legitimate form of entrapment. The
pieces of evidence thus seized therein were admissible. As the appellate court
noted, it was within legal bounds and no anomaly was found in the conduct of the
buy-bust operation. There is, therefore, no basis for the assertion that the trial
courts order denying said motion was biased and committed with grave abuse of
discretion.
ELI LUI, ET AL. VS. MATILLANO, May 27, 2004
Right against unreasonable searches and seizures; Mission Order does not
authorize an illegal search. Waiver of the right against an unreasonable
search and seizure.

116

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

the employer, the residence of a relative of the suspect was forcibly open
by the authorities by kicking the kitchen door to gain entry into the house.
Thereafter, they confiscated different personal properties therein which
were allegedly part of those stolen from the employer. They were in
possession of a mission order but later on claimed that the owner of the
house gave his consent to the warrantless search. Are the things
admissible in evidence? Can they be sued for damages as a result of the
said warrantless search and seizure?
Held:
The right against unreasonable searches and seizures is a personal
right which may be waived expressly or impliedly. BUT A WAIVER BY
IMPLICATION CANNOT BE PRESUMED. There must be clear and
convincing evidence of an actual intention to relinquish the right. There
must be proof of the following:
a. that the right exists;
b. that the person involved had knowledge, either constructive or actual, of
the existence of said right;
c. that the said person had an actual intention to relinquish the right.
Finally, the waiver must be made voluntarily, knowingly and
intelligently in order that the said is to be valid.
The search was therefore held illegal and the members of the
searching party held liable for damages in accordance with the doctrine
laid down in Lim vs. Ponce de Leon and MHP Garments vs. CA.
e. General or roving warrants
Read:
1. Stonehill vs. Diokno,June 19,1967
Concepcion, C.J.
The petitioners are questioning the validity of a total of 42 search
warrants issued on different dates against them and the corporations in
which they are officers, directing the peace officer to search the persons
above-named and/or the premises of their offices, warehouses and to seize
and take possession of the following personal property, to wit:
"Books of accounts, financial records, vouchers, correspondence, receipts,
ledgers, journals, typewriters and other documents or papers showing all
business transactions including disbursement receipts, balance sheets and
profit and loss statements"

117

since they are the subject of the offense of violating the CENTRAL
BANK LAWS, TARIFF AND CUSTOMS LAWS, INTERNAL
REVENUE CODE AND THE REVISED PENAL CODE.
The petitioners claim that the search warrants are void being
violative of the Constitutional provision on search and seizure on the
ground that:
a. The search warrants did not particularly describe the documents, books
and things to be seized;
b. cash money not mentioned in the warrant were actually seized;
c. The warrants were issued to fish evidence in the deportation cases
against them;
d. the searches and seizures were made in an illegal manner;
e. the things seized were not delivered to the court to be disposed of in a
manner provided for by law.
Issue:
Were the searches and seizures made in the offices and residences
of the petitioners valid?
a. As to the searches made on their offices, they could not question
the same in their personal capacities because the corporations have a
personality separate and distinct with its officers. An objection to an
unlawful search and seizure IS PURELY PERSONAL AND CANNOT BE
AVAILED OF BY THIRD PARTIES. CONSEQUENTLY, THE
PETITIONERS MAY NOT VALIDLY OBJECT TO THE USE IN
EVIDENCE AGAINST THEM OF THE DOCUMENTS, PAPERS AND
THINGS SEIZED FROM THE OFFICES AND PREMISES OF THE
CORPORATIONS, TO WHOM THE SEIZED EFFECTS BELONG,
AND MAY NOT BE INVOKED BY THE CORPORATE OFFICERS IN
PROCEEDINGS AGAINST THEM IN THEIR INDIVIDUAL
CAPACITY.
b. As to the documents seized in the residences of the petitioners,
the same may not be used in evidence against them because the warrants
issued were in the nature of a general warrant for failure to comply with
the constitutional requirement that:
1. that no warrant shall issue but upon probable cause, to be determined by
the judge in the manner set forth in said provision; and

118
2. that the warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the
contested warrants. They were issued upon applications stating that the
natural and juridical persons therein named had committed a violation of
Central bank Laws, Tariff and Customs Laws, Internal revenue Code and
Revised Penal Code. IN OTHER WORDS, NO SPECIFIC OFFENSE
HAD BEEN ALLEGED IN SAID APPLICATIONS. THE AVERMENTS
THEREOF WITH RESPECT TO THE OFFENSE COMMITTED WERE
ABSTRACT. AS A CONSEQUENCE, IT WAS IMPOSSIBLE FOR
THE JUDGE WHO ISSUED THE WARRANTS TO HAVE FOUND
THE EXISTENCE OF PROBABLE CAUSE, FOR THE SAME
PRESUPPOSES THE INTRODUCTION OF COMPETENT PROOF
THAT THE PARTY AGAINST WHOM IT IS SOUGHT HAS
PERFORMED PARTICULAR ACTS, OR COMMITTED SPECIFIC
OMISSIONS, VIOLATING A GIVEN PROVISION OF OUR
CRIMINAL LAWS.
2. Bache vs. Ruiz, 37 SCRA 823
3. Secretary vs. Marcos, 76 SCRA 301
4. Castro vs. Pabalan, April 30,l976
5. Asian Surety vs. Herrera, 54 SCRA 312 (A search warrant for
estafa, falsification, tax evasion and insurance fraud is a general warrant
and therefore not valid)
6. Collector vs. Villaluz, June 18,1976
7. Viduya vs. Verdiago, 73 SCRA 553
8. Dizon vs. Castro, April 12, 1985
9. People vs. Veloso, 48 Phil. 169
10. TAMBASEN VS. PEOPLE, July 14, 1995; PEOPLE VS. CA, 216 SCRA
101. A SCATTER-SHOT WARRANT is a search warrant issued for
more than one specific offense like one for estafa, robbery, theft and
qualified theft)
f. Define probable cause. Who determines probable cause?
a. ROBERTS VS. CA, 254 SCRA 307
b. DE LOS SANTOS VS. MONTESA, 247 SCRA 85
VICENTE LIM,SR. AND MAYOR SUSANA LIM
VS.HON. N. FELIX (G.R. NO. 99054-57)
EN BANC
GUTIERREZ, JR. J.
Facts:
--------

119
Petitioners are suspects of the slaying of Congressman Moises
Espinosa, Sr. and three of his security escorts and the wounding of
another. They were initially charged, with three others, with the crime of
multiple murder with frustrated murder. After conducting a preliminary
investigation, a warrant of arrest was issued on July 31, 1989. Bail was
fixed at P200,000.
On September 22, 1989, Fiscal Alfane, designated to review the
case, issued a Resolution affirming the finding of a prima facie case
against the petitioners but ruled that a case of Murder for each of the
killing of the four victims and a physical injuries case for inflicting
gunshot wound on the survivor be filled instead against the suspects.
Thereafter, four separate informations to that effect were filed with the
RTC of Masbate with no bail recommended.
On November 21, 1989, a motion for change of venue, filed by the
petitioners was granted by the SC. It ordered that the case may be
transferred from the RTC of Masbate to the RTC of Makati.
Petitioners then moved that another hearing ba conducted to
determine if there really exists a prima facie case against them in the light
of documents showing recantations of some witnesses in the preliminary
investigation. They likewise filed a motion to order the transmittal of
initial records of the preliminary investigation conducted by the municipal
judge of Barsaga of Masbate. These motions were however denied by the
court because the prosecution had declared the existence of probable
cause, informations were complete in form in substance , and there was
no defect on its face. Hence it found it just and proper to rely on the
prosecutors certification in each information.
ISSUE:
---------Whether or not a judge may issue a warrant of arrest without bail
by simply relying on the prosecutions certification and recommendation
that a probable cause exists?
Held:
----1. The judge committed a grave abuse of discretion.
In the case of Placer vs. Villanueva, the sc ruled that a judge may
rely upon the fiscal's certification of the existence of a probable cause and
on the basis thereof, issue a warrant of arrest. However, the certification
does not bind the judge to come out with the warrant of arrest. This
decision interpreted the "search and seizure" provision of the 1973
Constitution. Under this provision, the judge must satisfy himself of the
existence of probable cause before issuing a warrant of order of arrest. If

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on the face of information, the judge finds no probable cause, he may
disregard the fiscal's certification and require the submission of the
affidavits of witness to aid him at arriving at a conclusion as to the
existence of a probable cause. This has been the rule since U.S vs.
Ocampo and Amarga vs. Abbas.
2. In the case of Soliven vs. Makasiar, decided under the 1987
Constitution, the Court noted that the addition of the word personally after
the word determined and the deletion of the grant of authority by the 1973
Constitution to issue warrants to other respondent officers as to may be
authorized by law does not require the judge to personally examine the
complainant and his witness in his determination of probable cause for the
issuance of a warrant of arrest.What the Constitution underscores is the
exclusive and personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause. Following established doctrine
and procedures, he shall:
(1) personally evaluate the reports and the supporting
documents submitted by the fiscal regarding the existence of probable
cause and, on the basis thereof, issue a warrant of arrest;
(2) If on the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of probable cause.
3. The case of People vs. Honorable Enrique B. Inting reiterates
the following doctrines:
(1) The determination of probable cause is a function of the
judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election
Supervisor to ascertain. Only the judge alone makes this detemination.
(2) The preliminary inquiry made by the prosecutor does not
bind the judge. It merely assist him to make the determination of probable
cause. The judge does not have to follow what the prosecutor's present to
him. By itself, the prosecutor's certification of probable cause is
ineffectual. It is the report, the affidavits, the transcripts of stenographic
notes, and all other supporting documents behind the prosecutor's
certification which are material in assisting the judge to make his
determination.
(3) Preliminary inquiry should be distinguished from the
preliminary investigation proper. While the former seeks to determine
probable cause for the issuance of warrant of arrest, the latter ascertains
whether the offender should be held for trial or be released.
4.
In the case of Castillo vs. Villaluz, the court ruled that judges
of RTC no longer have authority to conduct preliminary investigations:

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This authority was removed from them by the 1985 Rules on Criminal
Procedure, effective on January 1, 1985.
5.
In the present case, the respondent judge relies solely on the
certification of the prosecutor. Considering that all the records of the
investigation are in Masbate, he has not personally determined the
existence of probable cause. The determination was made by the
provincial prosecutor. The constitutional requirement had not been
satisfied.
The records of the preliminary investigation conducted by the
Municipal Court of Masbate and reviewed by the respondent Fiscal were
still in Masbate when the respondent Fiscal issued the warrant of arrest
against the petitioners. There was no basis for the respondent judge to
make his personal determination regarding the existence of probable cause
from the issuance of warrant of arrest as mandated by the Constitution. He
could not have possibly known what has transpired in Masbate as he had
nothing but a certification. Although the judge does not have to personally
examine the complainant and his witnesses (for the prosecutor can
perform the same functions as commissioner for taking of evidence) there
should be a report and necessary documents supporting the Fiscal's bare
certification. All of these should be before the judge.
1. Amarga vs. Abbas, 98 Phil. 739
1-a. 20th Century Fox vs. CA, 164 SCRA 655
1-b. Quintero vs. NBI, 162 SCRA 467
1-c. The Presidential Anti-Dollar Salting Task Force vs. CA, GR No.
83578, March 16, 1989
SOLIVEN VS. MAKASIAR, 167 SCRA 393
The word personally after the word determined does not
necessarily mean that the judge should examine the complainant and his
witnesses personally before issuing the search warrant or warrant of arrest
but the exclusive responsibility on the part of said judge to satisfy himself
of the existence of probable cause. As such, there is no need to examine
the complainant and his witnesses face to face. It is sufficient if the judge
is convinced of the existence of probable cause upon reading the affidavits
or deposition of the complainant and his witnesses.
1-e. Pendon vs. CA, Nov. 16, 1990
1-f. P. vs. Inting, July 25, 1990
1-g. Umil vs. Ramos, et al., July 9, 1990 with the
Resolution of the Motion for Reconsideration in November, 1991
1-h. Paderanga vs. Drilon, April 19, 1991
2. Department of Health vs. Sy Chi Siong,
Inc., GR No.
85289, February 20, 1989
2-a. P. vs. Villanueva, 110 SCRA 465

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2-b. Placer vs. Villanueva, 126 SCRA 463 (Only a judge has the
power to determine probable insofar as the issuance of a warrant of arrest
is concerned)
3. Tolentino vs. Villaluz,July 27,1987
4. Cruz vs. Gatan, 74 SCRA 226
5. Olaes vs. P., 155 SCRA 486
7. Geronimo vs. Ramos, 136 SCRA 435
JUAN PONCE ENRILE VS. JUDGE JAIME SALAZAR, ET AL.,
G.R.NO. 92163, June 5, 1990
Due process; right to bail; probable cause for the issuance of a warrant of
arrest
(Note: This might be useful also in your Criminal Law)
Narvasa, J.
On February 27, 1990, Senator Juan Ponce Enrile was arrested by law
enforcement officers led by NBI Director Alfredo Lim on the strength of a
warrant of arrest issued by the respondent judge, HON. JAIME
SALAZAR, Regional trial Court, Branch 103, Quezon City in Criminal
Case No. 90-10941. The warrant was issued on an information signed and
filed earlier in the day by Senior State Prosecutor AURELIO TRAMPE
charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and
Gregorio Honasan with the crime of rebellion with murder and multiple
frustrated murder allegedly committed during the period of the failed coup
attempt from November 29 to December 10, 1990. Senator Enrile was
taken to and held overnight at the NBI Headquarters on Taft Ave., Manila,
WITHOUT BAIL, NONE HAVING BEEN RECOMMENDED IN THE
INFORMATION AND NONE FIXED IN THE WARRANT OF ARREST.
On February 28, 1990, petitioner through counsel filed a petition for
Habeas Corpus alleging that he was deprived of his constitutional rights in
being, or having been:
a. held to answer for a criminal offense which does not exist in the
statute books;
b. charged with a criminal offense in an information for which no
complaint was initially filed or preliminary investigation was conducted,
hence, he was denied due process;
c. denied the right to bail; and
d. arrested or detained on the strength of warrant issued without the
judge who issued it first having personally determined the existence of
probable cause.
HELD:

123

The parties' oral and written arguments presented the following options:
1. Abandon the Hernandez Doctrine and adopt the dissenting opinion of
Justice Montemayor that "rebellion cannot absorb more serious crimes";
2. Hold Hernandez Doctrine applicable only to offenses committed in
furtherance, or as necessary means for the commission, of rebellion, BUT
NOT TO ACTS COMMITTED IN THE COURSE OF A REBELLION
WHICH ALSO CONSTITUTE COMMON CRIMES OF GRAVE OR
LESS GRAVE CHARACTER;
3. Maintain Hernandez Doctrine as applying to make rebellion absorb
all other offenses committed in its course, whether or not necessary to its
commission or in furtherance thereof.
1. On the first option, 11 justices voted AGAINST abandoning Hernandez.
Two members felt that the doctrine should be re-examined. In view of the
majority, THE RULING REMAINS GOOD LAW, ITS SUBSTANTIVE
AND LEGAL BASES HAVE WITHSTOOD ALL SUBSEQUENT
CHALLENGES AND NO NEW ONES ARE PRESENTED HERE
PERSUASIVE ENOUGH TO WARRANT A COMPLETE REVERSAL.
This is so because of the fact that the incumbent President (exercising
legislative powers under the 1986 Freedom Constitution) repealed PD No.
942 which added a new provision of the Revised Penal Code, particularly
Art. 142-A which sought to nullify if not repealed the Hernandez Doctrine.
In thus acting, the President in effect by legislative fiat reinstated the
Hernandez as a binding doctrine with the effect of law. The Court can do
no less than accord it the same recognition, absent any sufficiently
powerful reason against so doing.
2. On the second option, the Supreme Court was unanimous in voting to
reject the same though four justices believe that the arguments in support
thereof is not entirely devoid of merit.
3. With the rejection of the first two options, the Hernandez Doctrine
remains a binding doctrine operating to prohibit the complexing of
rebellion with any other offense committed on the occasion thereof, either
as a means necessary to its commission or as unintended effect of an
activity that constitutes rebellion.
On the issues raised by the petitioner:
a. By a vote of 11-3, the Court ruled that the information filed against the
petitioner does in fact charge an offense despite the objectionable phrasing
that would complex rebellion with murder and multiple frustrated murder,
that indictment is to be read as charging SIMPLE REBELLION. The
petitioner's contention that he was charged with a crime that does not exist
in the statute books, WHILE TECHNICALLY CORRECT SO FAR AS

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THE COURT RULED THAT REBELLION MAY NOT BE
COMPLEXED WITH OTHER OFFENSES COMMITTED ON THE
OCCASION THEREOF, MUST THEREFORE BE DISMISSED AS A
MERE FLIGHT OF RHETORIC. Read in the context of Hernandez, the
information does indeed charge the petitioner with a crime defined and
punished by the Revised Penal Code: SIMPLE REBELLION.
b. Was the petitioner charged without a complaint having been initially
filed and/or preliminary investigation conducted? The record shows that a
complaint for simple rebellion against petitioner was filed by the NBI
Director and that based on the strength of said complaint a preliminary
investigation was conducted by the respondent prosecutors culminating in
the filing of the questioned information. THERE IS NOTHING
INHERENTLY IRREGULAR OR CONTRARY TO LAW IN FILING
AGAINST A RESPONDENT AN INDUCTMENT FOR AN OFFENSE
DIFFERENT FROM WHAT IS CHARGED IN THE INITIATORY
COMPLAINT, IF WARRANTED BY THE EVIDENCE DEVELOPED
DURING THE PRELIMINARY INVESTIGATION.
c. The petitioner claims that the warrant issued is void because it was
issued barely one hour and twenty minutes after the case was raffled to the
respondent judge which could hardly gave him sufficient time to
personally go over the voluminous records of the preliminary
investigation. Also, the petitioner claims that the respondent judge issued
the warrant for his arrest without first personally determining the existence
of probable cause by examining under oath or affirmation the complainant
and his witnesses, in violation of Art. III, Section 2, of the Constitution.
This Court has already ruled that it is not unavoidable duty of the judge to
make such a personal examination, it being sufficient that he follows
established procedure by PERSONALLY EVALUATING THE REPORT
AND THE SUPPORTING DOCUMENT SUBMITTED BY THE
PROSECUTOR. MEREBY BECAUSE SAID RESPONDENT JUDGE
HAD WHAT SOME MIGHT CONSIDER ONLY A RELATIVELY
BRIEF PERIOD WITHIN WHICH TO COMPLY WITH THAT DUTY ,
GIVES NO REASON TO ASSUME THAT HE HAD NOT, OR COULD
NOT HAVE, SO COMPLIED; NOR DOES THAT SINGLE
CIRCUMSTANCE SUFFICE TO OVERCOME THE LEGAL
PRESUMPTION THAT OFFICIAL DUTY HAS BEEN REGULARLY
PERFORMED.
d. Petitioner also claims that he is denied of his constitutional right to bail.
In the light of the Court's affirmation of Hernandez as applicable to
petitioner's case, and of the logical and necessary corollary that the
information against him should be considered as charging only the crime
of simple rebellion which is bailable before conviction, THAT MUST
NOW BE ACCEPTED AS A CORRECT PROPOSITION.
NOTES:

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This might be useful also in your Remedial Law.
Was a petition for Habeas Corpus before the Supreme Court the
appropriate vehicle for asserting a right to bail or vindicating its denial?
The Supreme Court held that the criminal case before the respondent
judge is the normal venue for invoking the petitioner's right to have
provisional liberty pending trial and judgment. The correct course was for
the petitioner to invoke that jurisdiction by filing a petition to be admitted
to bail, claiming a right to bail per se or by reason of the weakness of the
evidence against him. ONLY AFTER THAT REMEDY WAS DENIED
BY THE TRIAL COURT SHOULD THE REVIEW JURISDICTION OF
THE SUPREME COURT BE INVOKED, AND EVEN THEN, NOT
WITHOUT FIRST APPLYING TO THE COURT OF APPEALS IF
APPROPRIATE RELIEF WAS ALSO AVAILABLE THERE.
Even assuming that the petitioner's premise that the information
charges a non-existent crime would not excuse or justify his improper
choice of remedies. Under either hypothesis, the obvious recourse would
have been a motion to quash brought in the criminal action before the
respondent judge.
g. Warrantless searches and seizures--when valid
or not. Is "Operation Kapkap" valid?
Read:
PEOPLE VS. MENGOTE, G.R. No. 87059, June, 1992, 210 SCRA 174
Warrantless search and
seizure
Cruz, J.
Facts|
1. On August 8, 1987, the Western Police District received a telephone call
from an informer that there were three suspicious-looking persons at the
corner of Juan Luna and North Bay Blvd., in Tondo, Manila;
2. When the surveilance team arrived therein, they saw the accused
"looking from side to side" and "holding his abdomen". They approched
these persons and identified themselves as policement that is why they
tried to ran away because of the other lawmen, they were unable to escape;
3. After their arrest, a .38 cal. Smith and Wessor revolver was confiscated
from the accused and several days later, an information for violation of PD
1866 was filed against him;

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4. After trial, Mengote was convicted of having violated PD 1866 and was
sentenced to suffer reclusion perpetua based on the alleged gun as the
principal evidence. Hence this automatic appeal.
Issue:
Was there a valid warrantless search and seizure?
Held:
There is no question that evidence obtained as a result of an illegal
search or seizure is inadmissible in any proceeding for any purpose. That
is the absolute prohibition of Article III, Section 3 [2], of the Constitution.
This is the celebrated exclusionary rule based on the justification given by
Justice Learned Hand that "only in case the prosecution, which itself
controls the seizing officials, knows that it cannot profit by their wrong
will the wrong be repressed."
Section 5, Article 113 of the Rules of Court provides:
Sec. 5. Arrest without warrant; when lawful.- A peace officer or
private person may, without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed,
is actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
x x x
We have carefully examined the wording of this Rule and cannot
see how we we can agree with the prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not
an escapee from a penal institution when he was arrested. We therefore
confine ourselves to determining the lawfulness of his arrest under either
Par. (a) or Par. (b) of this Section.
Par. (a) requires that the person be arrested (1) after he has
committed or while he is actually committing or is at least attempting to
commit an offense, (2) in the presence of the arresting officer.

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These requirements have not been established in the case at bar. At
the time of the arrest in question, the accused-appellant was merely
"looking from side to side" and "holding his abdomen," according to the
arresting officers themselves. There was apparently no offense that had
just been committed or was being actually committed or at least being
attempted by Mengote in thie presence.
The Solicitor General submits that the actual existence of an
offense was not necessary as long as Mengote's acts created a reasonable
suspicion on the part of the arresting officers and induced in them the
belief that an offense had been committed and that accused-appellant had
committed it". The question is, What offense? What offense could
possibly have been suggested by a person "looking from side to side" and
"holding his abdomen" and in aplace not exactly forsaken.
These are certainly not sinister acts. And the setting of the arrest
made them less so, if at all. It might have been different if Mengote had
been apprehended at an unholy hour and in a place where he had no
reason to be, like a darkened alley at 3 o'clock in the morning. But he was
arrested at 11:30 in the morning and in a crowded street shortly after
alighting from a passenger jeep with his companion.He was not skulking
in the shadows but walking in the clear light of day. There was nothing
clandestine about his being on that street at that busy hour in the blaze of
the noonday sun.
On the other hand, there could have been a number of reasons,
all of them innoent, why hiseyes were darting from side to sideand he was
holding his abdomen. If they excited suspicion in the minds of the
arresting officers, as the prosecution suggests, it has nevertheless not
been shown what their suspicion was all about.
xxx
The case before us is different because there was nothing to
support the arresting officers' suspicion other than Mengote's darting eyes
and his hand on his abdomen. By no stretch of the imagination could it
have been inferred from these acts that an offense had just been
committed, or was actually being committed, or was at least being
attempted in their presence.
This is similar to PEOPLE vs. AMMINUIDIN, 163 SCRA 402
where the Court held that a warrantless arrest of the accused was
unconstitutional. This was effected while he was coming down the vessel,
to all appearances no less innocent than the other disembarking
passengers. He had not committed nor was actually committing or
attempting to commit an offense in the presence of the arresting officers.
He was not even acting suspiciously. In short, there was no probable cause
that, as the prosecution incorrectly suggested, dispensed with the
constitutional requirement of a warrant.

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

requirements have also not been satisfied. Theprosecution has not shown
that at the time of Mengote's arrest an offense had in fact been committed
and that the arresting officers had personal knowldge of facts indicating
that Mengote had committed it. All they had was hearsay information
from the telephone caller, and about a crime that had yet to bem
committed.
xxx
In the landmark case of People vs. Burgos, 144 SCRA 1, this
Court declared:
Under Section 6(a) of Rule 113, the officer arresting a person who
has just committed, is committing, or is about to commit an offense must
have personalknowledge of that fact. The offense must also be committed
in his presence or within his view. (SAYO vs. CHIEF OF POLICE, 80
Phil. 859).
xxx
In arrests without a warrant under Section 6(b), however, it is not
enough that there is reasonable ground to believe that the person to be
arrested has committed a crime. A crime must in fact or actually have been
committed first. That a crime has actually been committed is an essential
precondition. It is not enough to suspect that a crime may have been
committed. The fact of the commission of the offense must be undisputed.
The test of reasonable ground applies only to the identity of the
perpetrator..
This doctrine was affirmed in Alih vs. Castro, 151 SCRA 279,
thus:
If the arrest was made under Rule 113, Section 5, of the Rules of
Court in connection with a crime about to be committed, being committed,
or just committed, what was that crime? There is no allegation in the
record of such a falsification. Parenthetically, it may be observed that
under the Revised Rule 113, Section 5(b), the officer making the arrest
must have personal knowledge of the ground therefor as stressed in the
recent case of People vs. Burgos.
It would be a sad day, indeed, if any person could be summarily
arrested and searched just because he is holding his abdomen, even if it
be possibly because of a stomach-ache, or if a peace officer could clamp
handcuffs on any person with a shifty look on suspicion that he may have
committed a criminal act is actually committing or attempting it. This
simply cannot be done in a free society. This is not a police state where

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order is exalted over liberty or, worse, personal malice on the part ofthe
arresting officer may be justified in the name of security.
xxx
The court feels that if the peace officers had been more mindful
of the provisions of the Bill of Rights, the prosecution of the accusedappellant might have succeeded. As it happened, they allowed their over
zealousness to get the better of them, resulting in their disregard of the
requirements of a valid search and seizure that rendered inadmissible the
evidence they had invalidly seized.
This should be a lesson to other
peace officers. Their
impulsiveness may be the very cause of the acquittal of persons who
deserve to be convicted, escaping the clutches of the law, because,
ironically enough, it has not been observed by those who are supposed to
enforce it.
When illegal arrest is deemed waived.
Warrantless arrest; no personal knowledge of the arresting officer
PEOPLE VS. GALVEZ, 355 SCRA 246
Mendoza, J.
The policeman arrested the accused-appellant on the basis solely
of what Reynaldo Castro had told him and not because he saw the
accused-appellant commit the crime charged against him. Indeed, the
prosecution admitted that there was no warrant of arrest issued against
accused-appellant when the latter was taken into custody. Considering that
the accused-appellant was not committing a crime at the time he was
arrested nor did the arresting officer have any personal knowledge of facts
indicating that accused-appellant committed a crime, his arrest without a
warrant cannot be justified.
However, by entering a plea of not guilty during the arraignment,
the accused-appellant waived his right to raise the issue of illegality of his
arrest. IT IS NOW SETTLED THAT OBJECTION TO A WARRANT OF
ARREST OR THE PROCEDURE BY WHICH A COURT ACQUIRES
JURISDICTION OVER THE PERSON OF AN ACCUSED MUST BE
MADE BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE
OBJECTION IS DEEMED WAIVED. THE FACT THAT THE ARREST
WAS ILLEGAL DOES NOT RENDER THE SUBSEQUENT
PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO
CONVICT THE GUILTY WHEN ALL THE FACTS POINT TO THE
CULPABILITY OF THE ACCUSED.

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g-1. Warrantless Search and seizure by a private person. (Valid
since the constitutional provision is not applicable to him; when it is not
valid)
Read:
1. PEOPLE VS. MENDOZA, 301 SCRA 66
Warrantless searches and seizures by private individuals
2. SILAHIS INTERNATIONAL HOTEL, INC. VS. ROGELIO
SOLUTA, ET AL., 482 SCRA 660
Carpio-Morales, J.
The petitioner suspects that the respondents who are officers of the
Silahis International Hotel Union were using the Union Office located
inside the hotel in the sale or use of marijuana, dollar smuggling, and
prostitution. They arrived at the said conclusion through surveillance.
In the morning of January 11, 1988, while the respondent union
officer was opening the Union Office, security officers of the plaintiff
entered the union office despite objections thereto by forcibly opening the
same. Once inside the union office they started to make searches which
resulted in the confiscation of a plastic bag of marijuana. An information
for violation of the dangerous drugs act was filed against the respondent
before the RTC of Manila which acquitted them on the ground that the
search conducted was illegal since it was warrantless and without consent
by the respondents.
After their acquittal, the respondents filed a case for Malicious
Prosecution against the petitioner for violation of Art. 32 of the Civil
Code. After trial, the Regional Trial Court held that petitioners are liable
for damages as a result of an illegal search. The same was affirmed by the
Court of Appeals.
Issue:
Whether the warrantless search conducted by the petitioners
(private individual and corporation) on the union office of the private
respondents is valid.
Held:
The search is not valid and they are civilly liable under Art. 32 of
the Civil Code. The fact that the union office is part of the hotel owned by
the petitioners does not justify the warrantless search. The alleged reports
that the said union office is being used by the union officers for illegal
activities does not justify their acts of barging into the said office without
the consent of the union officers and without a search warrant. If indeed

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there was surveillance made, then they should have applied for a search
warrant.
The ruling in People vs. Andre Marti is not applicable here because
in Marti, a criminal case, the issue was whether an act of a private
individual, allegedly in violation of ones constitutional rights may be
invoked against the State. In other words, the issue in Marti is whether the
evidence obtained by a private person acting in his private capacity
without the participation of the State, is admissible.
3. PEOPLE OF THE PHILIPPINES VS. ANDRE MARTI
G.R. NO. 81561, January 18, 1991
Warrantless Search and seizure
by a private person
Bidin, J.
FACTS:
Andre Marti and his common-law wife, Shirley Reyes went to
Manila Packaging and Export Forwarders to send four (4) packages to
Zurich, Switzerland. Anita Reyes, owner of the place (no relation to
Shirley), received said goods and asked if she could examine and inspect
it. Marti refused. However later, following standard operating procedure,
Job Reyes, co-owner and husband of Anita opened the boxes for final
inspection, before delivering it to the Bureau of Customs and/or Bureau of
Posts.
Upon opening, a peculiar odor emanated from the box that was
supposed to contain gloves. Upon further perusal, he felt and saw a dried
leaves inside the box. Job Reyes then brought samples to the NBI, he told
them that the boxes to be shipped were still in his office. In the presence of
the NBI agents, Reyes opened the box and discovered that the odor came
from the fact that the dried leaves were actually those of the marijuana
flowering tops.
Two other boxes,marked as containing books and tabacalera
cigars; also revealed bricks or case-like marijuana leaves and dried
marijuana leaves respectively.
Marti was later invited by the NBI to shed light on the attempted
shipment of the dried leaves. Thereafter an information was filed against
the appellant for violating RA 6425 or the Dangerous Drugs Act. The
Special Criminal Court of Manila convicted accused Marti of violating
sec.21(b) of said RA.
ISSUES:

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1. Did the search conducted by a private person, violate accused's
right against unreasonable searches seizures and invocable against the
state?
2. Was the evidence procured from the search admissible?
Held:
1. No, constitutional protection on search and seizure is imposable only
against the state and not to private persons.
Since Art. III,2 of the 1987 constitution is almost verbatim from
the United States constitution, the SC may consider US Fed. SC cases as
likewise doctrinal in this jurisdiction. Hence, in US cases, the
constitutional provision against unreasomable searches and seizure was
intended as a restraint upon the activities of the sovereign authority and
NOT intended against private persons. If a search was initiated by a
private person the provision does not apply since it only proscribes
government action. This view is supported by the deliberations by the
1986 Constitutional Commission.
In short, the protection against unreasonable searches and seizures
cannot be extended to acts comitted by private individuals so as to bring it
within the ambit of alleged unlawful intrusion.
Case at bar will show that it was Job Reyes` initiative that
perpetrated the search. He opened the packages and took the samples to
NBI. All the NBI agents did was to observe and look in plain sight. This
did not convert it to a search as contemplated by the constitution.
2. Yes, since the search was valid, the evidence from therein is admissible
evidence.
Art.III [2], on the admissibility of evidence in violation of the right
against unreasonable searches and seizures, likewise applies only to the
government and its agencies and not to private persons.
(U.S. cases cited: Burdeau v. McDowell (256 us 465 [1921], state
v. Bryan (457 p 2d 661 [1968], Walker v. state (429 s.w 2d 121 [1969]),
Barnes v. us (373 F 2d 517 [1967]), Chadwick v. state (329 sw 2d 135).
VALID WARRANTLESS SEARCH AND SEIZURE:
1. Search made incidental to a valid arrest
a.
b.
c.
d.

Moreno vs. Ago Chi, 12 Phil. 439

PEOPLE VS. ANG CHUN KIT, 251 SCRA 660
PEOPLE VS. LUA, 256 SCRA 539
PEOPLE VS. Figueroa, 248 SCRA 679

133
e. NOLASCO VS. PANO, 139 SCRA 541 (A search incidental to a valid
arrest must be done at the place where the accused is arrested. As such, if
accused was arrested while inside a jeepney, there is no valid search
incidental to a valid arrest if she will be brought to her residence and
thereafter search the said place)
f. ESPANO VS. CA, 288 SCRA 588 (If the accused was arrested in the
street during a buy-bust operation, the search of his house nearby is not a
valid search incidental to a valid arrest)
PEOPLE VS. GO, 354 SCRA 338
Where the gun tucked in a persons waist is plainly visible to the
police, no search warrant is necessary and in the absence of any license for
said firearm, he may be arrested at once as he is in effect committing a
crime in the presence of the police officers. No warrant is necessary in
such a situation, it being one of the recognized exceptions under the Rules.
As a consequence of the accuseds valid warrantless arrest inside
the nightclub, he may be lawfully searched for dangerous weapons or
anything which may be used as proof of the commission of an offense,
without a search warrant in accordance with Section 12, Rule 126. This is
a valid search incidental to a lawful arrest.
In fact, the subsequent discovery in his car which was parked in a
distant place from where the illegal possession of firearm was committed
[after he requested that he will bring his car to the Police Station after his
warrantless arrest) , of a drug paraphernalia and shabu, CANNOT BE
SAID TO HAVE BEEN MADE DURING AN ILLEGAL SEARCH. As
such, the items do not fall under the exclusionary rule and the unlicensed
firearms, drug paraphernalia and the shabu, can be used as evidence
against the accused.
2. Search of moving vehicles
a. P. VS. MARIACOS, G.R. No. 188611, June 16, 2010
b. Carrol vs. US, 267 US 132
c. PEOPLE VS. LO HO WING, et al.
(G. R. No. 88017) January 21, 1991
d. MUSTANG LUMBER VS. CA, 257 SCRA 430
e. PEOPLE VS. CFI, 101 SCRA 86
f. PEOPLE VS. MALMSTEDT198 SCRA 401
g. PEOPLE VS. LO HO WING, 193 SCRA 122
FACTS:
In July 1987, the Special Operations Group of the CIS received a
tip from one of its informers about an organized group engaged in
importation of illegal drugs and smuggling of contraband items. To

134
infiltrate the crime syndicate, they recruited confidential men and "deep
penetration agents" under OPLAN SHARON 887. One such agent was
Reynaldo Tia (the dicharged/accused). As an agent, he submitted regular
reports of undercover activities of suspected syndicates. CAPTAIN
PALMERA, head of oplan sharon 887, in turned informed the Dan
gerous Drugs Board of Tia's activities.
Tia was introduced to his co-accused Lim Cheng Huat by another
agent named George. Lim wanted a male travelling companion for his
business trips abroad. Tia offered his services and was hired by Lim. Later,
Tia was introduced to Peter Lo (alias of accused/appellant Lo Ho Wing),
the later turning out to be Tia's intended companion.
Appellant Lo Ho Wing and Tia left for Hongkong on October 4,
1987. Tia telephoned Capt. Palmera that they would return to the
Philippines on October 6. From Hongkong, the two proceeded to
Guangzhou in mainland China. There, appeallant Lo Ho Wing bought six
(6) cans of tea.Tia saw these 6 bags when they were opened for
examination. That evening, they went to Lo Ho Wing's room and he saw
two other men with him. One was fixing the tea bags, while the other was
burning a substance on a piece of aluminum foil using a lighter. Appellant
Lo Ho Wing joined the second man and sniffed the smoke emitted by the
burning substance. When Tia asked Lo Ho Wing what cargo they would
bring to Manila, the latter replied that they would be bringing Chinese
drugs.
The next day en route to Manila, customs examiners inspected the
bags containing the tin cans of tea. Since the bags were not closely
examined, appellant Lo Ho Wing and Tia were cleared. In Manila, They
were met by Lim Cheng Huat. Appelant Lo Ho Wing and Tia boarded a
taxi from the airport and loaded their luggage in the taxi's compartment.
Lim Cheng Huat followed them in another taxi.
Meamwhile, a team composed by Capt. Palmera positioned
themselves in strategic areas around the airport. The CIS men who first
saw Lo Ho and Tia followed them. Along Imelda Avenue, the CIS car
overtook the taxi ridden by Lo Ho Wing and Tia , forcing the taxi driver to
stop his vehicle. The CIS team asked the taxi driver to open the baggage
compartment. The CIS team asked permission to search their luggage.
A tin can of tea was taken out of the compartment. Sgt. Cayabyab
of the CIS pried the lid open and pressed it in the middle to pull out the
contents. Crystalline white powder resmbling crushed alum came out.
Suspecting the crystalline powder to be a dangerous drug, he had the three
travelling bags opened for inspection. All the bags threshed out a total of
six tin cans. Tia and appellant were taken to the CIS headquarters for
questioning. Meanwhile, the second taxi carrying Lim Cheng Huat sped in
attempt to escape. However, they were later captured.

135
Samples from the bag tested positive for metamphetamine. The
three suspects were indicted for violating Art. III, sec.15 of the Dangerous
Drug Act. Appellant Lo Ho Wing and Lim Cheng Huat were sentenced to
suffer life imprisonment and to pay a fine of P25,000 each. Reynaldo Tia
was discharged as a state witness. The trial court gave full credence to the
testimonies of government agents since the presumption of regularity in
the performance of official duties were in their favor.
ISSUES:
1. Was the warrantless search valid?
2. Are the effects taken admissible as evidence?
HELD:
1. This is a case of search on a moving vehicle which is one of the
well-known exceptions to the valid warrantless search and seizure. To
stilol get a search warrant from a judge would allow the accused go scotfree.
2. Since the search and seizure are valid, the evidence obtained is
admissible as evidence in any proceeding.
3. Seizure of goods concealed to avoid duties/taxes (Valid)
a.
b.
c.
d.

Papa vs. Mago, 22 SCRA 857

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

4. Seize of evidence in plain view

a.
b.
c.
d.

Harris vs. US, 390 US 234

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

5.
a.
b.
c.

When there is waiver of right or gives his consent;

De Garcia vs. Locsin, 65 Phil. 689
Lopez vs. Commissioner, 65 SCRA 336
PEOPLE VS. DAMASO, 212 SCRA (In order that there is a valid
waiver to a warrantless search, the waiver or consent should be given by
the person affected, not just anybody. Example: The landlady could not
give a valid consent to the search of a room occupied by a tenant. Said
tenant himself should give the consent in order to be valid. The doctrine in
Lopez vs. Commissioner to the effect that it could be given by any
occupant of a hotel room being rented by the respondent is deemed
abandoned)

136
d. VEROY VS. LAYAGUE, 210 SCRA 97. (If the owner of the house
allowed the policemen/soldiers to enter his house because they are
searching for rebel soldiers but once inside the house, they instead seized
an unlicensed firearm,)
6.
a.
b.
c.

STOP AND FRISK.

People vs. Mengote, June, 1992
PEOPLE VS. POSADAS, 188 SCRA 288
MANALILI VS. PEOPLE, October 9, 1997. (The policemen saw several
suspicious looking men at dawn who ran when they went near them. As
the policemen ran after them, an unlicensed firearm was confiscated. The
search is valid)
d. MALACAT VS. CA, 283 SCRA 159. (Mere suspicions not sufficient to
validate warrantless arrest)
6. EDDIE GUAZON, ET AL. VS. MAJ. GEN. RENATO DE VILLA,
ET AL., GR NO. 80508, January 30, 1990
Warrantless searches;
"zonings" and "saturation drives"
Section 17, Art. VII of the Constitution
Gutierrez, Jr., J.
Facts:
This is a petition for Prohibition with preliminary injunction to prohibit
military and police officers from conducting "Areal target zonings" or
"saturation drive" in Metro Manila particularly in places where they
suspect that the subversives are hiding. The 41 petitioners claim that the
saturation drives conducted by the military is in violation of their human
rights because with no specific target house in mind, in the dead of the
night or early morning hours, police and military officers without any
search warrant cordon an area of more than one residence and sometimes
the whole barangay. Most of them are in civilian clothes and w/o
nameplates or identification cards; that the raiders rudely rouse residents
from their sleep by banging on the walls and windows of their homes,
shouting, kicking their doors open (destroying some) and ordering the
residents to come out; the residents are herded like cows at the point of
high powered guns, ordered to strip down to their briefs and examined for
tattoo marks; that while examination of the bodies of the men are being
conducted, the other military men conduct search and seizures to each and
every house without civilian witnesses from the neighbors; some victims
complained that their money and other valuables were lost as a result of
these illegal operations.
The respondents claim that they have legal authority to conduct
saturation drives under Art. VII, Sec. 17 of the Constitution which
provides:

137

The respondents would want to justify said military operation on the

following constitutional provisions:
The President shall be the Commander-in-Chief of all the armed forces
of the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion x x x
xxxx
The President shall have control of all the executive departments, bureaus
and offices. He shall ensure that the laws are faithfully executed.
Held:
There can be no question that under ordinary circumstances, the police
action of the nature described by the petitioners would be illegal and
blatantly violative of the Bill of Rights. If the military wants to flush out
subversive and criminal elements, the same must be consistent with the
constitutional and statutory rights of the people. However, nowhere in the
Constitution can we see a provision which prohibits the Chief Executive
from ordering the military to stop unabated criminality, rising lawlessness
and alarming communist activities. However, all police actions are
governed by the limitations of the Bill of Rights. The government cannot
adopt the same reprehensible methods of authoritarian systems both of the
right and of the left. This is so because Art. III, Section 3 of the
Constitution is very clear as explained in Roan vs. Gonzales, 145 SCRA
687 and Century Fox vs. Court of Appeals, 164 SCRA 655. Also, it must
be pointed out that police actions should not be characterized by methods
that offend one's sense of justice (Rochin vs. California, 342 US 165).
The Court believes it highly probable that some violations were
actually committed. But the remedy is not to stop all police actions,
including the essential and legitimate ones. A show of force is sometimes
necessary as long as the rights of people are protected and not violated.
However, the remedy of the petitioners is not an original action for
prohibition since not one victim complains and not one violator is properly
charged. It is basically for the executive department and the trial courts.
The problem is appropriate for the Commission of Human Rights.
The petition was therefore remanded to the Regional Trial Courts of
Manila, Malabon and Pasay City where the petitioners may present
evidence supporting their allegations so that the erring parties may be
pinpointed and prosecuted. In the meantime, the acts violative of human
rights alleged by the petitioners as committed during the police actions are
ENJOINED until such time as permanent rules to govern such actions are
promulgated.
********************

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Cruz, Padilla and Sarmiento, JJ. , Dissenting

The ruling of the majority that the petitioners are not proper parties is a
specious pretext for inaction. We have held that technical objections may
be brushed aside where there are constitutional questions that must be met
(RODRIGUEZ VS. GELLA, 92 PHIL. 603; TOLENTINO VS.
COMELEC, 41 SCRA 702; PHILCONSA VS. JIMENEZ, 65 SCRA 479;
EDU VS. ERICTA, 35 SCRA 481; GONZALES VS. COMELEC, 27
SCRA 835; LAGUNZAD VS. CA, 154 SCRA 199; DEMETRIA VS.
ALBA,148 SCRA 208). Lozada was in fact an aberration.
Where liberty is involved, every person is a proper party even if he may
not be directly injured. Each of us has a duty to protect liberty and that
alone makes him a proper party. It is not only the owner of a burning
house who has the right to call the firemen.
Section 2, Art. III of the constitution is very clear: Unreasonable
searches and seizures of whatever nature and for whatever purpose is
prohibited.
Saturation drives are NOT AMONG THE ACCEPTED INSTANCES
WHEN A SEARCH OR AN ARREST MAY BE MADE WITHOUT A
WARRANT. THEY COME UNDER THE CONCEPT OF THE FISHING
EXPEDITIONS STIGMATIZED BY LAW AND DOCTRINE X X X I
submit that this court should instead categorically and emphatically that
these saturation drives are violative of human rights and individual liberty
and should be stopped immediately. While they may be allowed in the
actual theater of military operations against the insurgents, the Court
should also make it clear that Metro Manila is not such a battleground.
7. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS
OF ROBERTO UMIL, ROLANDO DURAL and RENATO
VILLANUEVA. MANOLITA UMIL and NICANOR DURAL,
FELICITAS SESE VS. FIDEL RAMOS, ET AL. and companion cases,
G.R. No. 81567, July 9, 1990 (An NPA may be arrested without warrant
while sleeping or being treated in a hospital because his being a
communist rebel is a continuing crime)
h. If the judge finds that there's probable cause, must he issue a warrant of
arrest
as a matter of course? See the distinctions.
Read:
1. SAMULDE VS. SALVANI, SEPTEMBER 26, 1988 (No because a
warrant is issued in order to have jurisdiction of the court over the person
of an accused and to assure the court of his presence whenever his case is
called in court. As such, if the court believes that the presence of the

139
accused could be had even without a warrant of arrest, then he may not
issue said warrant. Note: This case involves a minor offense)
2. GOZO VS. TAC-AN, 300 SCRA 265. If the offense committed is a
serious one like that obtaining in this case for murder, the Judge must
issue a warrant of arrest after determining the existence of probable cause)
i. Searching questions
Read:
DR. NEMESIO PRUDENTE VS. THE HON. EXECUTIVE JUDGE
ABELARDO M. DAYRIT, RTC 33, Manila & People of the
Philippines, GR No. 82870, December 14, 1989 (En Banc)
Search and seizure; requirements/requisites of a valid search warrant;
searching questions
Padilla, J.
This is a petition to annul and set aside the Order of respondent Judge
DENYING the motion of the petitioner to quash Search Warrant No. 8714 as well as its Order denying the petitioner's Motion for
Reconsideration.
Facts:
1. On October 31, 1987, P/Major Alladin Dimagmaliw, Chief of the
Intelligence Special Action Division (ISAD) of the Western Police District
(WPD) filed with the Regional Trial Court of Manila, Branch 33, presided
by the respondent Judge, an application for the issuance of a Search
Warrant for violation of PD 1866 against the petitioner;
2. In his application for search warrant, P/Major Dimagmaliw alleged that:
"1. That he has been informed and has good and sufficient reasons to
believe that NEMESIO PRUDENTE who may be found at the Polytechnic
University of the Philippines x x x has in his control or possession
firearms, explosives, hand grenades and ammunition intended to be used
as the means of committing an offense x x x;
"2. That the undersigned has verified the report and found it to be a fact x
x x ".
In support of said application, P/Lt. Florencio Angeles executed a
"Deposition of Witness dated October 31, 1987 .

140
3. On November 1, 1987, a Sunday and All Saints Day, the search warrant
was enforced by some 200 WPD operatives led by Col. Edgar Dula Torre
and Major Maganto;
4. On November 2, 1987, Ricardo Abando, a member of the searching
team executed an affidavit alleging that he found in the drawer of a
cabinet inside the wash room of Dr. Prudente's office a bulging brown
envelope with three live fragmentation hand grenades separately with old
newspapers;
5. On November 6, 1987, the petitioner moved to quash the search warrant
on the grounds that:
a. the complainant's lone witness, Lt. Angeles had no personal knowledge
of the facts which formed the basis for the issuance of the search warrant;
b. the examination of said witness was not in the form of searching
questions and answers;
c. the search warrant was a general warrant, for the reason that it did not
particularly describe the place to be searched and that it failed to charge
one specific offense; and
d. the warrant was issued in violation of Circular No. 19 of the Supreme
Court in that the complainant failed to allege that the issuance of the
search warrant on a Saturday was urgent.
6. On March 9, 1986, the respondent judge denied the motion to quash and
on April 20, 1988, the same judge denied petitioner's motion for
reconsideration. Hence this petition.
Issue:
Was the Search Warrant issued by the respondent judge valid? Was
there probable cause?
Held:
a. For a valid search warrant to issue, there must be probable cause, which
is to be determined by the judge, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things
to be seized. The probable cause must be in connection with one specific
offense and the judge must, before issuing the warrant, personally examine
in the form of searching questions and answers, in writing and under oath,
the complainant and the witnesses he may produce, on facts personally
known to them and attach to the record their sworn statements together
with any affidavits submitted.

141
The "probable cause" for a valid search warrant, has been defined "as
such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed, and that the
objects sought in connection with the offense are in the place sought to be
searched". (Quintero vs. NBI, June 23, 1988). This probable cause must be
shown to be within the personal knowledge of the complainant or the
witnesses he may produce and not based on mere hearsay. (P. VS. SY
JUCO, 64 PHIL. 667; ALVAREZ VS. CFI, 64 PHIL. 33; US VS.
ADDISON, 28 PHIL. 566).
In his affidavit, Major Dimagmaliw declared that "he has been
informed" that Nemesio Prudente "has in his control and possession" the
firearms and explosivees described therein, and that he "has verified the
report and found it to be a fact." On the other hand, Lt. Angeles declared
that as a result of continuous surveillance for several days, they "gathered
informations from verified sources" that the holders of said firearms and
explosives are not licensed t possess them. It is clear from the foregoing
that the applicant and his witness HAD NO PERSONAL KNOWLEDGE
OF THE FACTS AND CIRCUMSTANCES which became the basis for
issuing the questioned search warrant, but acquired knowledge thereof
only through information from other sources or persons.
Despite the fact that Major Dimagmaliw stated in his affidavit that "he
verified the information he had earlier received and found it to be a fact,
YET THERE IS NOTHING IN THE RECORD TO SHOW OR
INDICATE HOW AND WHEN SAID APPLICANT VERIFIED THE
EARLIER INFORMATION ACQUIRED BY HIM AS TO JUSTIFY HIS
CONCLUSION. He might have clarified this point if there had been
searching questions and answers, but there were none. In fact, the records
yield no questions and answers, whether searching or not, vis-a-vis the
said applicant.
In ALVAREZ VS. CFI, 64 PHIL. 33, it was held that the following test
must be complied with in an application for search warrant or in a
supporting deposition based on personal knowledge or not"The true test of sufficiency of a deposition or affidavit to warrant
issuance of a search warrant is whether it was drawn in a manner that
perjury could be charged thereon and the affiant be held liable for damage
caused. The oath required must refer to the truth of the facts within the
personal knowledge of the applicant of a search warrant and/or his
witnesses, not of the facts merely reported by a person whom one
considers to be reliable."
Tested by the above standards, the allegation of the witness, Lt.
Angeles, do not come up to the level of facts based on his personal
knowledge so much so that he cannot be held liable for perjury for such
allegations in causing the issuance of the questioned search warrant.

142

Besides, respondent judge did not take the deposition of the applicant
as required by the Rules of Court. As held in Roan vs. Gonzales, 145
SCRA 694, "mere affidavits of the complainant and his witnesses are thus
insufficient. The examining judge has to take the depositions in writing of
the complainant and the witnesses he may produce and attach them to the
record."
b. There was also no searching questions asked by the respondent judge
because as shown by the record, his questions were too brief and short and
did not examine the complainant and his witnesses in the form of
searching questions and answers. On the contrary, the questions asked
were leading as they called for a simple "yes" or "no" answer. As held in
Quintero vs. NBI, June 23, 1988, "the questions propounded are not
sufficiently searching to establish probable cause. Asking of leading
questions to the deponent in an application for search warrant and
conducting of examination in a general manner would not satisfy the
requirements for the issuance of a valid search warrant."
The Court avails of this decision to reiterate the strict requirements for
determination of probable cause in the valid issuance of a search warrant
as enunciated in earlier cases. True, this requirements are stringent but the
purpose is to assure that the constitutional right of the individual against
unreasonable search and seizure shall remain both meaningful and
effective.
c. The rule is, that a description of a place to be searched is sufficient if the
officer with the warrant can with reasonable effort ascertain and identify
the place intended (P VS. VELOSO, 48 PHIL. 180). In the case at bar, the
warrant described the place to be searched as the premises of the PUP,
more particularly the offices of the Department of Science and Tactics as
well as the Office of the President, Nemesio Prudente.
There is also no violation of the "one specific offense" requirement
considering that the application for a search warrant explicitly described
the offense: illegal possession of firearms and ammunitions under PD
1866.
d. CIRCULAR NO. 19 OF THE SUPREME COURT merely provides for
a guideline, departure from which would not necessarily affect the validity
of the search warrant provided the constitutional requirements are
complied with.
a. HUBERT WEBB VS. DE LEON, 247 SCRA 650
Read also:
1. Alvarez vs. CFI, 64 Phil. 33 (When the applicant is basing his
knowledge from an informant, the same is not valid)

143
2. Luna vs. Plaza, 26 SCRA 313
3. De Mulata vs. Irizari, 62 SCRA 210
4. Marinas vs. Siochi, 104 SCRA 423
5. Roan vs. Gonzales, 145 687
6. Mata vs. Bayona, 128 SCRA 388 (Depositions of the applicants
and witnesses should be attached to the record of the case)
7. Corro vs. Lising, 137 SCRA 541
8. Nolasco vs Pano, 147 SCRA 509
9. Burgos vs. Chief of Staff, 133 SCRA 800
10. P. vs. Burgos, September 14,1986
11. P. vs. Aminnudin Y Ahni, July 6,1988
12. Ponsica vs. Ignalaga, July 31,1987 (When the statements in the
affidavits of witnesses are mere generalities, mere conclusions of law, and
not positive statements of particular acts, the warrant is not valid)
13. Aberca vs. Ver, April 15,1988
2. Panganiban vs. Cesar, 159 SCRA 599
3. PENDON VS. CA, November 16, 1990. (When the questions asked to the
applicant for a search warrant was pre-typed, the same is not valid since
there could have been no searching questions)
j. Warrantless searches and seizures--when valid
or not.
Read:
1. RICARDO VALMONTE VS. GEN RENATO DE VILLA,
GR No. 83988, September 29, 1989
Warrantless searches and seizures;
validity of checkpoints
Padilla, J.
Facts:
1. On January 20, 1987, the National Capital Region District Command
(NCRDC) was activated with the mission of conducting security
operations within its area of responsibility for the purpose of maintaining
peace and order. As part of its duty to maintain peace and order, the
NCRDC installed checkpoints in various parts of Valenzuela, Metro
Manila.
Petitioners claim that because of these checkpoints, the residents of
Valenzuela, MM are worried of being harassed and of their safety being
placed at the arbitrary, capricious and whimsical disposition of the military
authorities manning the checkpoints considering that their cars and
vehicles are being subjected to regular searches and check-ups, especially
at night or dawn, without the benefit of a search warrant and/or court
order.

144

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

Valenzuela increased because Benjamin Parpon, the supply officer of the
Municipality of Valenzuela was gunned down in cold blood by the
military men manning the checkpoints for ignoring or refusing to submit
himself to the checkpoint and for continuing to speed off inspite of several
warning shots fired in the air.
Issue:
Whether or not the existence of said checkpoints as well as the periodic
searches and seizures made by the military authorities without search
warrant valid?
Held:
Petitioners' concern for their safety and apprehension at being harassed
by the military manning the checkpoints are not sufficient grounds to
declare the checkpoints as per se illegal.
Not all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be determined
by any fixed formula but is to be resolved according to the facts of each
case.
Where, for example, the officer merely draws aside the curtain of a
vacant vehicle which is parked on a public fair grounds (People vs. Case,
190 MW 289), or simply looks into a vehicle (State vs. Gaina, 97 SE 62),
or flashes a light therein (Rowland vs. Commonwealth, 259 SW 33), these
do not constitute unreasonable search.
The setting up of checkpoints in Valenzuela, Metro Manila may be
considered as security measure to effectively maintain peace and order and
to thwart plots to destabilize the government. In this connection, the Court
may take judicial notice of the shift to urban centers and their suburbs of
the insurgency movement, so clearly reflected in the increased killings in
cities of police and military men by NPA's "sparrow units," not to mention
the abundance of unlicensed firearms.
BETWEEN THE INHERENT RIGHT OF THE STATE TO PROTECT
ITS EXISTENCE AND PROMOTE PUBLIC WELFARE AND AN
INDIVIDUAL'S RIGHT AGAINST A WARRANTLESS SEARCH
WHICH IS HOWEVER REASONABLY CONDUCTED, THE FORMER
SHALL PREVAIL.
True, the manning of these checkpoints by the military is susceptible of
abuse by the men in uniform, in the same manner that all governmental
power is susceptible to abuse. BUT , AT THE COST OF OCCASIONAL
INCONVENIENCE, DISCOMFORT AND EVEN IRRITATION TO THE

145
CITIZEN, THE CHECKPOINTS DURING THESE ABNORMAL
TIMES ARE PART OF THE PRICE WE PAY FOR AN ORDERLY
SOCIETY AND PEACEFUL COMMUNITY.
Finally, it must be emphasized that on July 17, 1988, the military
checkpoints in Metro Manila were temporarily lifted and a review and
refinement of the rules in the conduct of the police and military manning
the checkpoints upon order of the NCRDC Chief.
Cruz and Sarmiento, JJ., dissenting:
The bland declaration by the majority that individual rights must yield
to the demands of national security ignores the fact that the Bill of Rights
was intended precisely to limit the authority of the State even if asserted
on the ground of national security.
RESOLUTION
ON
THE MOTION
RECONSIDERATION, JUNE 15, 1990

FOR

Very Important:
The Supreme Court in its Resolution of the Motion for Reconsideration
dated 15 June, 1990, held that military and police checkpoints are not
illegal as these measures to protect the government and safeguards the
lives of the people. The checkpoints are legal as where the survival of the
organized government is on the balance, or where the lives and safety of
the people are in grave peril. However, the Supreme Court held further
that the military officers manning the checkpoints may conduct
VISUAL SEARCH ONLY, NOT BODILY SEARCH.
Read also:
1-a. Rizal Alih vs. Gen. Castro, June 23,1987
1-b. P s. Cendana, October 17, 1990
1-c. P. vs. Castiller, August 6, 1990
1-d. P. vs. Olaes, July 30, 1990
2. Papa vs. Mago, 22 SCRA 857
3. Roldan vs. Arca, 65 SCRA 336
4. P. vs. CFI, 101 SCRA 86
5. Pacis vs. Pamaran, 56 SCRA 16
6. Lopez vs. Commisioner, 65 SCRA 336
7. P vs. Cruz, 165 SCRA 135
8. Nolasco vs. Pano, 147 SCRA 509 & 139 SCRA
152
9. P vs. Claudio, 160 SCRA 646 (There is a valid warrantless search
when a NARCOM (now PDEA) officer arrests the person who owns a bag
which contains marijuana which he found out when he smelled the same.
Here , there is a probable cause since he has personal knowledge due to
his expertise on drugs)

146
11. PEOPLE VS. DEL ROSARIO, July 10, 1994. (After the informant was
given by the police the amount of P100.00, he went to buy marijuana from
the accused then returned to the police headquarters with said article.
Thereafter, the policemen went to arrest the accused without warrant. The
arrest is not valid since it does not fall under Section 5 Rule 113)
Likewise, after securing a search warrant authorizing the seizure of
shabu and its paraphernalia and an unlicensed firearm was seized instead,
said gun is inadmissible in evidence.
k. May a non-judicial officer issue a warrant of arrest? (NO)
Read:
1.
2.
3.
4.

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

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

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

2. ESPANO VS. CA, 288 SCRA 558
m. Warrantless searches and arrests
Read:
1. P. vs. Bati, August 27, 1990
1-a. Manuel et al., vs. Judge Tirso Velasco, GR No. 84666, February
9, 1989
1-b. Garcia-Padilla vs. Enrile,121 SCRA 47 &
137 SCRA
647
1-c. P. vs. Maspil, Jr., August 20, 1990 (Compare with P. vs.
Aminnudin, July 6, 1988, supra)
1-d. Posadas vs. CA, Aug. 2, 1990
1-e. P. vs. De la Cruz
1-f. P. vs. ortiz, Dec. 3, 1990
1-g. Rolito Go vs. CA, Feb. 11, 1992
1-h. People vs. Mati, January 18, 1991
2. Morales vs. Ponce Enrile, 121 SCRA 538
2-a. P vs. Burgos, 144 SCRA 1
2-b. People vs. de la Cruz, 184 SCRA 416
2-c. Gatchalian vs. Board, May 31, 1991
2-d. People vs. Sucro, March 18, 1991

147
2-e. PEOPLE VS. SOLAYAO, 262 SCRA 255
2-f. PEOPLE VS. CUISON, 256 SCRA 325
2-g. PEOPLE VS. DAMASO, 212 SCRA 547
2-h. OPOSADAS VS. CA, 258 SCRA 188
2-i. PEOPLE VS. JUATAN, 260 SCRA 532 (Buy-bust operation)
3. Sec. 6, Rule 113, 1985 Rules on Criminal
Procedure, as
amended
n. Effect posting bail or entering a plea during the arraignment, if the
arrest was illegal. (The alleged illegality of the arrest is deemed waived
upon posting of the bond by the accused)
PEOPLE VS. GALVEZ, 355 SCRA 246
Mendoza, J.
The policeman arrested the accused-appellant on the basis solely
of what Reynaldo Castro had told him and not because he saw the
accused-appellant commit the crime charged against him. Indeed, the
prosecution admitted that there was no warrant of arrest issued against
accused-appellant when the latter was taken into custody. Considering that
the accused-appellant was not committing a crime at the time he was
arrested nor did the arresting officer have any personal knowledge of facts
indicating that accused-appellant committed a crime, his arrest without a
warrant cannot be justified.
However, by entering a plea of not guilty during the arraignment,
the accused-appellant waived his right to raise the issue of illegality of his
arrest. IT IS NOW SETTLED THAT OBJECTION TO A WARRANT OF
ARREST OR THE PROCEDURE BY WHICH A COURT ACQUIRES
JURISDICTION OVER THE PERSON OF AN ACCUSED MUST BE
MADE BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE
OBJECTION IS DEEMED WAIVED. THE FACT THAT THE ARREST
WAS ILLEGAL DOES NOT RENDER THE SUBSEQUENT
PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO
CONVICT THE GUILTY WHEN ALL THE FACTS POINT TO THE
CULPABILITY OF THE ACCUSED.
Read:
1.
2.
3.
4.
5.
6.

Callanta vs. Villanueva, 77 SCRA 377

PEOPLE VS. NAZARENO, 260 SCRA 256
FILOTEO VS. SANDIGANBAYAN, 263 SCRA 222
PEOPLE VS. NAZARENO, 260 SCRA 256
PEOPLE VS. LAPURA, 255 SCRA 85
PEOPLE VS. SILAN, 254 SCRA 491
o . Penalty for illegal arrest

148

Read:
Palon vs. NAPOLCOM, May 28, 1989
p. Judicial pronouncements on illegally seized
336

evidence, 106 SCRA

q. The exclusionary rule,155 SCRA 494

n. What is the status of a document obtained through subpoena?
Read:
Dianalan vs. Pros., Office of the Tanodbayan, Nov. 27, 1990
r. Search warrant for pirated video tapes
1. Century Fox vs. CA, 164 SCRA 655 (The master copy of the allegedly
pirated tape should be presented before the judge in order to convince him
of the existence of probable cause)
2. COLUMBIA PICTURES VS. CA, 261 SCRA 144
UY VS. BIR, 344 SCRA 36
The following are the requisites of a valid search warrant:
1. The warrant must be issued upon probable cause;
2. The probable cause must be determined by the judge himself and not by
applicant or any other person;
3. In determining probable cause, the judge must examine under oath and
affirmation the complainant and such witnesses as the latter may produce;
and
4. The warrant issued must particularly describe the place to be searched and
the person or things to be seized.
A description of the place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and identify the
place intended and distinguish it from other places in the community.
Search warrants are not issued on loose, vague or doubtful basis of fact,
nor on mere suspicion or belief. In this case, most of the items listed in the
warrants fail to meet the test of particularity, especially since the witness
had furnished the judge photocopies of the documents sought to be seized.
THE SEARCH WARRANT IS SEPARABLE, AND THOSE ITEMS
NOT PARTICULARLY DESCRIBED MAY BE CUT OFF
WITHOUT DESTROYING THE WHOLE WARRANT.
PEOPLE VS. VALDEZ, 341 SCRA 25

149
The protection against unreasonable search and seizure covers both
innocent and guilty alike against any form of highhandedness of law
enforces.
The plain view doctrine, which may justify a search without
warrant, APPLIES ONLY WHERE THE POLICE OFFICER IS NOT
SEARCHING FOR EVIDENCE AGAINST THE ACCUSED, BUT
INADVERTENTLY COMES ACROSS AN INCRIMINATING
OBJECT.
Just because the marijuana plants were found in an unfenced lot
does nor prevent the appellant from invoking the protection afforded by
the Constitution. The right against unreasonable search and seizure is the
immunity of ones person, which includes his residence, papers and other
possessions. For a person to be immune against unreasonable searches and
seizures, he need not be in his home or office, within a fenced yard or
private place.
PEOPLE VS. BAULA, 344 SCRA 663
In case of consented searches or waiver of the constitutional
guarantee against obtrusive searches, it is fundamental that to constitute
waiver, IT MUST APPEAR THAT THE RIGHT EXISTS; THE
PERSONS INVOLVED HAD KNOWLEDGE, EITHER ACTUAL
OR CONSTRUCTIVE, of the existence of such right. The third
condition did not exist in the instant case. Neither was the search
incidental to a valid warrantless arrest. (PEOPLE VS. FIFUEROA, July 6,
2000) An alleged consent to a warrantless search and seizure cannot be
based merely on the presumption of regularity in the performance of
official duty. THE PRESUMPTION BY ITSELF, CANNOT PREVAIL
AGAINST THE CONSTITUTIONALLY PROTECTED RIGHTS OF AN
INDIVIDUAL, AND ZEAL IN THE PURSUIT OF CRIMINALS
CANNOT ENNOBLE THE USE OF ARBITRARY METHODS THAT
THE CONSTITUTION ITSELF ABHORS.

CHAPTER IV
THE RIGHT TO PRIVACY
Section 3. The privacy of communication and
correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order
requires otherwise as prescribed by law.
Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose
in any proceeding.

150
Read:
Read:
NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism
Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on
July 15, 2007 (This Law shall be automatically suspended one (1) month
before and two (2) months after the holding of any election)
Please observe the procedure in obtaining the The Warrant [or Order]
of Surveillance, not found in the 1987 Philippine Constitution.
SURVEILLANCE OF SUSPECTS AND INTERCEPTION AND
RECORDING OF COMMUNICATIONS OF SUSPECTS OR
CHARGED OF TERRORISM
Section 7. Surveillance of suspects and interception and recording
of communications. The provisions of RA 4200 (Anti-Wiretapping Law)
to the contrary notwithstanding, a police or law enforcement official and
the members of his team may, upon a written order of the Court of
Appeals, listen to, intercept and record, with the use of any mode, form or
kind or type of electronic or other surveillance equipment or intercepting
and tracking devices, or with the use of any other suitable ways or means
for that purpose, any communication, message, conversation, discussion,
or spoken or written words between members of a judicially declared and
outlawed terrorist organization, association, or group of persons or of any
person charged with or suspected of the crime of terrorism or conspiracy
to commit terrorism.
Provided, That surveillance, interception and recording of
communications between lawyers and clients, doctors and patients,
journalists and their sources and confidential business correspondence
shall not be authorized.
Section 8. Formal Application for Judicial Authorization.- The
written order of the authorizing division of the Court of Appeals to track
down, tap, listen, intercept, and record communications, messages,
conversations, discussions, or spoken or written words of any person
suspected of the crime of terrorism or the crime of conspiracy to commit
terrorism, shall only be granted by the authorizing division of the Court of
Appeals UPON AN EX-PARTE written application of a police or law
enforcement official who has been duly authorized in writing by the AntiTerrorism Council created in Section 53 of this Act to file such ex-parte
application, and upon examination under oath and affirmation of the
applicant and the witnesses who may produce to establish:

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

facts and circumstances that the said crime of terrorism or conspiracy to

151

commit terrorism has been committed, or is being committed, or is about

to be committed;
That there is probable cause to believe based on personal knowledge of
facts and circumstances that evidence which is essential to the conviction
of any charged or suspected person for, or to the solution or prevention of
any such crimes, will be obtained; and
That there is no other effective means readily available for acquiring such
evidence.
Sec. 9. Classification and Contents of the Order of the Court. The
written order granted by the authorizing division of the Court of Appeals
as well as its order, if any, to extend or renew the same, the original
application of the applicant, including his application to extend or renew,
if any, and the written authorizations of the Anti-Terrorism Council shall
be deemed and are hereby declared as classified information: Provided,
That the person being surveilled or whose communications, letters, papers,
messages, conversations, discussions, spoken or written words and effects
have been monitored, listened to, bugged or recorded by law enforcement
authorities has the right to be informed of the acts done by the law
enforcement authorities in the premises or to challenge, if he or she
intends to do so, the legality of the interference before the Court of
Appeals which issued said written order. The written order of the
authorizing division of the court of Appeals shall specify the following:

The identity, such as name and address, if known, of the charged of

suspected persons whose communications, messages, conversations,
discussions, or spoken or written words are to be tracked down, tapped,
listened to, intercepted or recorded and, in case of radio, electronic, or
telephone (whether wireless or otherwise) communications, messages,
conversations, discussions, or spoken or written words, the electronic
transmission systems or the telephone numbers to be tracked down,
tapped, listened to, intercepted, and recorded and their locations if the
person suspected of the crime of terrorism or conspiracy to commit
terrorism is not fully known, such person shall be subject to continuous
surveillance provided there is reasonable ground to do so;
The identity (name and address, and the police or law enforcement
organization) of the members of his team judicially authorized to track
down, tap, listen to, intercept, and record the communications, messages,
conversations, discussions, or spoken or written words;
The offense or offenses committed, or being committed, or sought to be
prevented; and
The length of time which the authorization shall be used or carried out.
Section. 10. Effective Period of Judicial Authorization. Any
authorization granted by the authorizing division of the court of Appeals
shall only be effective for the length of time specified in the written order
of the authorizing division of the Court of Appeals, which shall not exceed
30 days from the date of receipt of the written order of the authorizing

152
division of the court of Appeals by the applicant police or law enforcement
official.
The CA may extend or renew the said authorization for another
non-extendible period, which shall not exceed 30 days from the expiration
of the original periodThe ex-parte application for renewal has been duly
authorized by the Anti-terrorism Council in writing.
If no case is filed within the 30-day period, the applicant police or
law enforcement official shall immediately notify the person subject of
the surveillance, interception, and recording of the termination of the said
surveillance, interception and recording. [Penalty to be imposed on the
police official who fails to inform the person subject of surveillance of the
termination of the surveillance, monitoring, interception and recording
shall be penalized to 10 years and 1 day to 12 years.
Section 15. Evidentiary Value of Deposited Materials. Any listened
to, intercepted, and recorded communications, messages, conversations
WHICH HAVE BEEN SECURED IN VIOLATION OF THE
PERTINENT PROVISIONS OF THIS ACT, SHALL ABSOLUTELY
NOT BE ADMISSIBLE AND USABLE AS EVIDENCE AGAINST
ANYBODY IN ANY JUDICIAL, QUASI-JUDICIAL, LEGISLATIVE,
OR ADMINISTRATIVE INVESTIGATION, INQUIRY, PROCEEDING,
OR HEARING.
JUDICIAL AUTHORIZATION TO EXAMINE BANK DEPOSITS,
ACCOUNTS, AND RECORDS OF SUSPECTED OR CHARGED
TERRORISTS
Section 27. judicial authorization required to examine bank
deposits, accounts and records.
The justices of CA designated as special court to handle antiterrorism cases after satisfying themselves of the existence of probable
cause in a hearing called for that purpose that:

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

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

153
allow such examination or to provide the desired information, when so
ordered by and served with the written order of the Court of Appeals.
Sec. 28. Application to examine deposits, accounts and records.
The written order of the CA authorizing the examination of bank
deposits, placements, trust accounts, assets and records:

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

to commit terrorism;
Of a judicially declared and outlawed terrorist organization or group of
persons;
Of a member of such judicially declared and outlawed organization,
association or group of persons, in a bank or financial institution-SHALL ONLY BE GRANTED BY THE AUTHORIZING
DIVISION OF THE CA UPON AN EX-PARTE APPLICATION TO
THAT EFFECT OF A POLICE OR LAW ENFORCEMENT OFFICIAL
who has been duly authorized by the Anti-Terrorism Council to file such
ex-parte application and upon examination under oath or affirmation of the
applicant and his witnesses he may produce to establish the facts that will
justify the need and urgency of examining and freezing the bank deposits,
placements, trust accounts, assets and records:

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

conspiracy to commit terrorism;
Of a judicially declared and outlawed terrorist organization or group of
persons;
Of a member of such judicially declared and outlawed organization,
association or group of persons.
Section 35. Evidentiary value of deposited bank materials.- Any
information, data, excerpts, summaries, notes, memoranda, work sheets,
reports or documents acquired from the examination of the bank deposits,
placements, trust accounts, assets and records of:

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

to commit terrorism;
Of a judicially declared and outlawed terrorist organization or group of
persons;
Of a member of such judicially declared and outlawed organization,
association or group of persons,
-which have been secured in violation of the provisions of this Act,
shall absolutely not be admissible and usable as evidence against anybody
in any judicial, quasi-judicial, legislative or administrative investigation,
inquiry, proceeding or hearing.

154
1. PEOPLE VS. CABALQUINTO, September 19, 2006, 502
SCRA 419
2. ZULUETA VS. CA, February 10, 1996
The wife forcibly opened the drawers at the clinic of her doctorhusband and took diaries, checks and greeting cards of his alleged
paramours. Thereafter, she used the same in their legal separation case.
Said documents are inadmissible in evidence. This is so because the
intimacies of husband and wife does not justify the breaking of cabinets to
determine marital infidelity.
3. OPLE VS. TORRES, July 23, 1998
Puno, J.
Facts:
On December 12, 1996, then President FIDEL V. RAMOS issued
Administrative Order No. 308 entitled ADOPTION OF A NATIONAL
COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM.
The AO seeks to have all Filipino citizens and foreign residents to
have a Population Reference Number (PRN) generated by the National
Statistics Office (NSO) through the use of BIOMETRICS
TECHNOLOGY .
The AO was questioned by Senator Ople on the following grounds:
1. The establishment of the PRN without any law is an unconstitutional
usurpation of the legislative powers of the Congress of the Philippines;
2. The appropriation of public funds for the implementation of the said AO is
unconstitutional since Congress has the exclusive authority to appropriate
funds for such expenditure; and
3. The AO violates the citizens right to privacy protected by the Bill of
Rights of the Constitution.
Held:
1. The AO establishes a system of identification that is all-encompassing in
scope, affects the life and liberty of every Filipino citizens and foreign
residents and therefore, it is supposed to be a law passed by Congress that
implements it, not by an Administrative Order issued by the President.
Administrative Power, which is supposed to be exercised by the
President, is concerned with the work of applying policies and enforcing
orders as determined by proper governmental organs. It enables the
President to fix a uniform standard of administrative efficiency and check
the official conduct of his agents. Prescinding from the foregoing precepts,
AO 308 involves a subject that is not appropriate to be covered by an

155
Administrative Order. An administrative order is an ordinance issued by
the President which relates to specific aspects in the administrative
operation of the government. It must be in harmony with the law and
should be for the sole purpose of implementing the law and carrying out
the legislative policy. The subject of AO 308 therefore is beyond the
power of the President to issue and it is a usurpation of legislative power.
2. The AO likewise violates the right to privacy since its main purpose is to
provide a common reference number to establish a linkage among
concerned agencies through the use of BIOMETRICS TECHNOLOGY.
Biometry is the science of the application of statistical methods to
biological facts; a mathematical analysis of a biological data. It is the
confirmation of an individuals identity through a fingerprint, retinal scan,
hand geometry or facial features. Through the PRN, the government
offices has the chance of building a huge and formidable information base
through the electronic linkage of the files of every citizen. The data,
however, may be gathered for gainful and useful government purposes;
but the existence of this vast reservoir of personal information constitutes
a covert invitation to misuse, a temptation that may be too great for some
of our authorities to resist.
Further, the AO does not even tells us in clear and unequivocal terms
how these informations gathered shall be handled. It does not provide who
shall control and access the data and under what circumstances and for
what purpose. These factors are essential to safeguard the privacy and
guaranty the integrity of the information. The computer linkage gives
other government agencies access to the information. YET, THERE ARE
NO CONTROLS TO GUARD AGAINST LEAKAGE OF
INFORMATIONS. WHEN THE ACCESS CODE OF THE CONTROL
PROGRAMS OF THE PARTICULAR COMPUTER SYSTEM IS
BROKEN, AN INTRUDER, WITHOUT FEAR OF SANCTION OR
PENALTY, CAN MAKE USE OF THE DATA FOR WHATEVER
PURPOSE, OR WORSE, MANIPULATE THE DATA STORED WITHIN
THE SYSTEM.
AO No. 308 is unconstitutional since it falls short of assuring that
personal information gathered about our people will be used only for
specified purposes thereby violating the citizens right to privacy.
KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY
EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006
BAYAN MUNA VS. EXECUTIVE SECRETARY EDUARDO
ERMITA, ET AL., April 19, 2006 & June 20, 2006

Carpio, J.

156
President Gloria Macapagal-Arroyo issued Presidential Proclamation
No. 420 that mandates the Adoption of a Unified, Multi-purpose
Identification System by all Government Agencies in the Executive
Department. This is so despite the fact that the Supreme Court held in an
En Banc decision in 1998 OPLE VS. EXECUTIVE SECRETARY
RUBEN TORRES Administrative Order No. 308[National computerized
Identification Reference System] issued by then President Fidel V. Ramos
that the same is unconstitutional because a national ID card system
requires legislation because it creates a new national data collection and
card issuance system, where none existed before. The Supreme Court
likewise held that EO 308 as unconstitutional for it violates the citizens
right to privacy.
Based on the Ople ruling, the petitioners claimed that Proclamation
No. 420 is unconstitutional on two (2) grounds:
a. usurpation of legislative powers; and
b. it infringes on the citizens right to privacy
Held:
The said Executive Order No. 420 does not violate the citizens right to
privacy since it does not require all the citizens to be issued a national ID
as what happened in AO 308. Only those dealing or employed with the
said government entities who are required to provide the required
information for the issuance of the said ID.
CAMILO L. SABIO vs. GORDON, G.R. No. 174340, October 17,
2006, 504 SCRA 704
Sandoval-Gutierrez, J.
The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago

introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455), 36
[4]
directing an inquiry in aid of legislation on the anomalous losses
incurred by the Philippines Overseas Telecommunications Corporation
(POTC),
Philippine
Communications
Satellite
Corporation
(PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to
the alleged improprieties in their operations by their respective Board of
Directors.

36[4]

Annex E of the Petition in G.R. No. 174318.

157
On May 8, 2006, Chief of Staff Rio C. Inocencio, under the
authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio
of the PCGG, one of the herein petitioners, inviting him to be one of the
resource persons in the public meeting jointly conducted by the
Committee on Government Corporations and Public Enterprises and
Committee on Public Services. The purpose of the public meeting was to
deliberate on Senate Res. No. 455.37[6]

On May 9, 2006, Chairman Sabio and other commissioners of the PCGG

declined the invitation because of prior commitment. 38[7] At the same
time, they invoked Section 4(b) of
E.O. No. 1 earlier quoted.

On September 12, 2006, at around 10:45 a.m., Major General

Balajadia arrested Chairman Sabio in his office at IRC Building, No. 82
EDSA, Mandaluyong City and brought him to the Senate premises where
he was detained.

Hence, Chairman Sabio filed with the Supreme Court a petition for
habeas corpus against the Senate Committee on Government
Corporations and Public Enterprises and Committee on Public Services,
their Chairmen, Senators Richard Gordon and Joker P. Arroyo and
Members.

I S S U E S:

Is the investigation conducted on the petitioners violative of their

right to privacy?

H E L D:

Zones of privacy are recognized and protected in our laws. 39[46]

Within these zones, any form of intrusion is impermissible unless excused
by law and in accordance with customary legal process. The meticulous
regard we accord to these zones arises not only from our conviction that
the right to privacy is a constitutional right and the right most valued
by civilized men,40[47] but also from our adherence to the Universal
37[6]

Annex F of the Petition in G.R. No. 174318.

38[7]

Annex G of the Petition in G.R. No. 174318.

39[46]

Marquez v. Desierto, G.R. No. 135882, June 27, 2001, 359 SCRA 772.

40[47]

See Morfe v. Mutuc No. L-20387, January 31, 1968, 22 SCRA 424.

158
Declaration of Human Rights which mandates that, no one shall be
subjected to arbitrary interference with his privacy and everyone has
the right to the protection of the law against such interference or
attacks.41[48]
Our Bill of Rights, enshrined in Article III of the Constitution,
provides at least two guarantees that explicitly create zones of privacy. It
highlights a persons right to be let alone or the right to determine
what, how much, to whom and when information about himself shall be
disclosed.42[49] Section 2 guarantees the right of the people to be
secure in their persons,
houses,
papers and effects against
unreasonable searches and seizures of whatever nature and for any
purpose.
Section 3 renders inviolable the privacy of
communication and correspondence and further cautions that any
evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

In evaluating a claim for violation of the right to privacy, a court

must determine whether a person has exhibited a reasonable expectation of
privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.43[50] Applying this determination to
these cases, the important inquiries are: first, did the directors and
officers of Philcomsat Holdings Corporation exhibit a reasonable
expectation of privacy?; and second, did the government violate such
expectation?

The answers are in the negative. Petitioners were invited in the

Senates public hearing to deliberate on Senate Res. No. 455, particularly
on the anomalous losses incurred by the Philippine Overseas
Telecommunications
Corporation
(POTC),
Philippine
Communications Satellite Corporation (PHILCOMSAT), and
Philcomsat Holdings Corporations (PHC) due to the alleged
improprieties in the operations by their respective board of directors.
Obviously, the inquiry focus on petitioners acts committed in the
discharge of their duties as officers and directors of the said corporations,
particularly Philcomsat Holdings Corporation. Consequently, they have
no reasonable expectation of privacy over matters involving their
offices in a corporation where the government has interest. Certainly,
41

[48]

42

[49]

43

[50]

Article 12 of the Universal Declaration of Human Rights. See also Article 17 (1) and (2) of the
International Covenant on Civil and Political Rights.
Constitutional and Legal Systems of ASEAN Countries, Sison, Academy of ASEAN Law and
Jurisprudence, 1990, at 221, citing I.R. Cortes, The Constitutional Foundations of Privacy, 7 (1970).
Burrows v. Superior Court of San Bernardino County, 13 Cal. 3d 238, 529 P 2d 590 (1974). See Katz v.
United states (1967), 389 U.S. 347, 350-352, 88 S. Ct. 507, 19 L. Ed. 2d 576; People v. Krivda (1971) 5 Cal. 3d
357, 364, 96 Cal. Rptr. 62, 486 P. 2d 1262; 8 Cal. 3d 623-624,105 Cal. Rptr. 521, 504 P. 2d 457. INSERT Herreras
Handbook on Arrest, Search and Seizure.

159
such matters are of public concern and over which the people have the
right to information.

This goes to show that the right to privacy is not absolute

where there is an overriding compelling state interest. In Morfe v.
Mutuc,44[51] the Court, in line with Whalen v. Roe,45[52] employed the
rational basis relationship test when it held that there was no infringement
of the individuals right to privacy as the requirement to disclosure
information is for a valid purpose, i.e., to curtail and minimize the
opportunities for official corruption, maintain a standard of honesty in
public service, and promote morality in public administration. 46[53] In
Valmonte v. Belmonte,47[54] the Court remarked that as public figures, the
Members of the former Batasang Pambansa enjoy a more limited
right to privacy as compared to ordinary individuals, and their actions
are subject to closer scrutiny. Taking this into consideration, the Court
ruled that the right of the people to access information on matters of public
concern prevails over the right to privacy of financial transactions.

Under the present circumstances, the alleged anomalies in the

PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the
conspiratorial participation of the PCGG and its officials are compelling
reasons for the Senate to exact vital information from the directors and
officers of Philcomsat Holdings Corporations, as well as from Chairman
Sabio and his Commissioners to aid it in crafting the necessary legislation
to prevent corruption and formulate remedial measures and policy
determination regarding PCGGs efficacy. There being no reasonable
expectation of privacy on the part of those directors and officers over the
subject covered by Senate Res. No. 455, it follows that their right to
privacy has not been violated by respondent Senate Committees.

Let it be stressed at this point that so long as the constitutional

rights of witnesses, like Chairman Sabio and his Commissioners, will be
respected by respondent Senate Committees, it their duty to cooperate
with them in their efforts to obtain the facts needed for intelligent
legislative action. The unremitting obligation of every citizen is to
respond to subpoenae, to respect the dignity of the Congress and its
Committees, and to testify fully with respect to matters within the realm of
proper investigation.

44[51]

Supra.

45[52]

429 U.S. 589 (1977).

46[53]

Justice Puno, Lecture on Legislative Inquiry and Right to Privacy, p. 60.

47[54]

170 SCRA 256 (1989)

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In fine, PCGG Chairman Camilo Sabio and Commissioners
Ricardo Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and
Manuel Andal and Julio Jalandoni, PCGGs nominees to Philcomsat
Holdings Corporation, as well as its directors and officers, must comply
with the Subpoenae Ad Testificandum issued by respondent Senate
Committees directing them to appear and testify in public hearings
relative to Senate Resolution No. 455.

CHAPTER V - FREEDOM OF SPEECH,

PRESS, EXPRESSION, etc.

Section 4. No law shall be passed

abridging the freedom of speech, of
expression, or of the press, or the right of
the people peaceably to assemble and
petition the government for the redress of
their grievances.
NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism
Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on
July 15, 2007 (This Law shall be automatically suspended one (1) month
before and two (2) months after the holding of any election)
Section 26 provides that persons who have been charged with
terrorism or conspiracy to commit terrorism---even if they have been
granted bail because evidence of guilt is not strongcan be:

Detained under house arrest;

Restricted from traveling; and/or
Prohibited from using any cellular phones, computers, or other means of
communications with people outside their residence.
1. Rule on criticisms against acts of public officers
Read:
1. Espuelas vs. People, 90 Phil. 524
2. US vs. Bustos, 37 Phil. 731 (A public official should not be onionskinned with reference to comments upon his official acts. The interest
of the government and the society demands full discussion of public
affairs)
3. P. vs. Perez, 45 Phil. 599
4. Mercado vs. CFI, 116 SCRA 93
2. Freedom of the press, in general

161
Read:
BAGUIO MIDLAND COURIER & CECILLE AFABLE VS. COURT
OF APPEALS & RAMON LABO, JR., 444 SCRA 28 [November 25,
2004]
Freedom of Expression; the public has the right to be informed on the
mental, moral and physical fitness of candidates for public office.
FACTS:
1. In the January 3, 1988 issue of the Baguio Midland Courier (BMC),
Cecille Afable, the Editor-in-Chief, in her column In and Out of Baguio
made the following comments:
Of all the candidates for Mayor of Baguio City), Labo has the
most imponderables about him. People would ask: can he read and
write? Why is he always talking about his Japanese father-in-law? Is he
really a Japanes Senator or a barrio Kapitan? Is it true that he will send
P18M aid to Baguio? Somebody wanted to put an advertisement of Labo
in the Midland Courier but was refused because he has not yet paid his
account of the last time he was a candidate for Congress. We will accept
all advertisements for him if he pays his old account first.
2. In the same column, Cecille Afable wrote the following comments in her
January 10, 1988 column at the Courier:
I heard that the Dumpty in the Egg is campaigning for Cortes.
Not fair. Some real doctors are also busy campaigning against Labo
because he has not also paid their medical services with them. Since he is
donating millions he should also settle his small debts like the reportedly
insignificant amount of P27,000 only. If he wins, several teachers were
signifying to resign and leave Baguio forever, and Pangasinan will be the
franca-liqua of Baguio.
3. As a result of the above articles, Ramon Labor, Jr. filed a complaint for
Damages before the regional trial Court of Baguio City as he claimed said
articles were libelous. He likewise filed a separate criminal complaint
before the Office of the City Prosecutor of Baguio but was dismissed;
4. Labo claimed that the said articles were tainted with malice because he
was allegedly described as Dumpty in the Egg or one who is a failure
in his business which is false because he is a very successful businessman
or to mean zero or a big lie; that he is a balasubas due to his alleged
failure to pay his medical expenses;
5. The petitioners, however, were able to prove that Labo has an unpaid
obligation to the Courier in the amount of P27,415.00 for the ads placed
by his campaigners for the 1984 Batasang Pambansa elections;

162

6. The Regional Trial Court, Branch 6, Baguio City, in its Decision dated
June 14, 1990 dismissed Labos complaint for damages on the ground that
the article of petitioner Afable was privileged and constituted fair
comment on matters of public interest as it dealt with the integrity,
reputation and honesty of private respondent Labo who was a candidate
for Mayor of Baguio City;
7. On January 7, 1992, the Court of Appeals reversed the RTC Decision and
ordered the petitioners to pay Ramon Labo, Jr. damages in the total
amount of P350,000.00 after concluding that the Dumpty in the Egg
refers to no one but Labo himself.
Hence, the Petition to the Supreme Court.
ISSUES:
A. WAS LABO THE DUMPTY IN THE EGG DESCRIBED IN THE
QUESTIONED ARTICLE/
B. WERE THE ARTICLES SUBJECT OF THE CASE LIBELOUS OR
PRIVILEGED/
HELD:
1. The Court of Appeals is wrong when it held that Labo is the Dumpty in
the Egg in the questioned article. This is so because the article stated that
The Dumpty in the Egg is campaigning for Cortes, another candidate for
mayor and opponent of Labo himself. It is unbelievable that Labo
campaigned for his opponent and against himself. Although such gracious
attitude on the part of Labo would have been commendable, it is contrary
to common human experience. As pointed out by the petitioners, had he
done that, it is doubtful whether he could have won as City Mayor of
Baguio in the 1988 elections, which he actually did. In line with the
doctrine in BORJAL VS. CA, 310 SCRA 1, that it is also not sufficient
that the offended party recognized himself as the person attacked or
defamed, but it must be shown that at least a 3 rd person could identify him
as the object of the libelous publication, the case should be dismissed
since Labo utterly failed to dispose of this responsibility.
2. Labo claims that the petitioners could not invoke public interest to
justify the publication since he was not yet a public official at that time.
This argument is without merit since he was already a candidate for City
mayor of Baguio. As such, the article is still within the mantle of
protection guaranteed by the freedom of expression provided in the
Constitution since it is the publics right to be informed of the mental,
moral and physical fitness of candidates for public office. This was
recognized as early as the case of US VS. SEDANO, 14 Phil. 338 [1909]
and the case of NEW YORK TIMES VS. SULLIVAN, 376 U.S. 254
where the US Supreme Court held:

163
it is of the utmost consequence that the people should
discuss the character and qualifications of candidates for their
suffrages. The importance to the State and to society of such
discussions is so vast, and the advantages derived so great, that
they more than counterbalance the inconvenience of private
persons whose conduct may be involved, and occasional injury to
the reputations of individuals must yield to the public welfare,
although at times such injury may be great. The public benefit
from publicity is so great and the chance of injury to private
character so small, that such discussion must be privileged.
Clearly, the questioned articles constitute fair comment on a matter
of public interest as it dealt with the character of the private respondent
who was running for the top elective post in Baguio City at that time.
PABLITO V. SANIDAD VS. COMELEC,
G.R. NO. 90878, January 29, 1990
Freedom of expression and of the press
Medialdea, J.
Facts:
1. On October 23, 1989, RA 6766, entitled "AN ACT PROVIDING FOR
AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS
REGION" was enacted into law;
2. Pursuant to said law, the City of Baguio and Provinces of Benguet,
Abra, Mt. Province, Ifugao and Kalinga-Apayao, all comprising the
autonomous region shall take part in a plebiscite originally scheduled for
December 27, 1989 but was reset to January 30, 1990 specifically for the
ratification or rejection of the said act;
3. By virtue of the 1987 Constitution and the Omnibus Election Code (BP
881), the Comelec issued Comelec Resolution No. 2167, Section 19 of
which provides:
"Section 19. Prohibition on columnist, commentators or
announcers.- During the plebiscite campaign period, on the day
before and on plebiscite day, no mass media columnist,
commentator, announcer or personality shall use his column or
radio or television time to campaign for or against the plebiscite
issues."
4. On November 20, 1989, petitioner PABLITO V. SANIDAD who is a
columnist ("OVERVIEW") for the Baguio Midland Courier, a weekly
newspaper circulated in the City of Baguio and the Cordilleras, filed a

164
petition for Prohibition with prayer for the issuance of a temporary
restraining order or a writ of preliminary injunction against the Comelec to
enjoin the latter from enforcing Section 19 of resolution No. 2167.
Petitioner claims that the said provision is violative of his constitutional
freedom of expression and of the press and it also constitutes a prior
restraint because it imposes subsequent punishment for those who violate
the same;
5. On November 28, 1989, the Supreme Court issued a temporary
restraining order enjoining the respondent from enforcing Section 19 of
Resolution No. 2167;
6. On January 9, 1990, Comelec through the Solicitor General filed its
Comment and moved for the dismissal of the petition on the ground that
Section 19 of Resolution No. 2167 does not absolutely bar the petitioner
from expressing his views because under Section 90 and 92 of BP 881, he
may still express his views or campaign for or against the act through the
Comelec space and airtime.
Held:
What is granted by Art. IX-C of the Constitution to the Comelec is the
power to supervise and regulate the use and enjoyment of franchises,
permits or other grants issued for the operation of transportation or other
public utilities to the end that equal opportunity, time and space, and the
right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates are insured. The evil
sought to be prevented by this provision is the possibility that a franchise
holder may favor or give undue advantage to a candidate in terms of
advertising time and space. This is also the reason why a columnist,
commentator or announcer is required to take a leave of absence from his
work during the campaign period if he is a candidate.
HOWEVER, NEITHER ARTICLE IX-C OF THE CONSTITUTION
NOR SECTION 11(B), 2ND PAR. OF RA 6646 CAN BE CONSTRUED
TO MEAN THAT THE COMELEC HAS ALSO BEEN GRANTED THE
RIGHT TO SUPERVISE AND REGULATE THE EXERCISE BY
MEDIA PRACTITIONERS THEMSELVES OF THEIR RIGHT TO
EXPRESSION DURING THE PLEBISCITE PERIODS. Media
practitioners exercising their freedom of expression during the plebiscite
periods are neither the franchise holders nor the candidates. In fact, there
are no candidates in a plebiscite.
While it is true that the petitioner is not absolutely barred from
campaigning for or against the Organic Act, said fact does not cure the
constitutional infirmity of Section 19, Comelec Resolution No. 2167. This
is so because IT IS STILL A RESTRICTION ON HIS CHOICE OF THE
FORUM WHERE HE MAY EXPRESS HIS VIEW.

165
Plebiscite issues are matters of public concern and importance. The
people's right to be informed and to be able to freely and intelligently
make a decision would be better served by access to an unabridged
discussion of the issues, INCLUDING THE FORUM. The people affected
by the issues presented in a plebiscite should not be unduly burdened by
restrictions on the forum where the right to expression may be exercised.
ACCORDINGLY, Section 19 of Comelec Resolution No. 2167 is
hereby declared UNCONSTITUTIONAL.
Read also:
1.
2.
3.
4.
5.
6.

In re: Ramon Tulfo,March 19, 199

In re: Atty. Emil Jurado, July 12, 1990
Burgos vs. Chief of Staff, 133 SCRA 800
Corro vs. Lising, 137 SCRA 448
Babst vs. NIB, 132 SCRA 316
Elizalde vs. Gutierrez,76 SCRA 448 (In order that any news item
relating to a judicial proceeding will not be actionable for being
libelous, the same must be [a] a true and fair report of the actual
proceedings; [b] must be done in good faith; and [c] no comments nor
remarks shall be made by the writer.
7. Policarpio vs. Manila Times, 5 SCRA 148
8. Lopez vs. CA, 34 SCRA 116
9. New York Times vs. Sullivan,376 U.S.254
10. Liwayway Publishing vs. PCGG, April 15,l988
3. Freedom of expression in general
Read:
1. RANDY DAVID VS. ARROYO, May 3, 2006, 489 SCRA 160;
2. Adiong vs. Comelec, March 31, 1992 (putting of decals and stickers in
ones car is within the protected freedom of expression)
3. National Press Club vs. Comelec, March 5, 1992. Real also the dissenting
and separate opinions of the justices. (Preventing campaigns through
radio, TV and newspapers is valid in order to even the playing field
between rich and poor candidates)
4. Zaldivar vs. Sandiganbayan, GR No. 7960-707 &
Zaldivar vs.
Gonzales, GR No. 80578, February
1, 1989
5. Eastern Broadcasting vs. Dans,137 SCRA 628
6. Newsweek vs. IAC, 142 SCRA 171
7. Kapisanan vs. Camara Shoes, 11 SCRA 477
8. IN RE: Atty. Tipon, 79 SCRA 372
9. Lacsa vs. IAC, May 23,1988
10. Kapunan vs. De Villa, December 6, 1988
4. Not within the protection of the freedom of
Constitution

expression clause of the

166

1. Obscenity; test of
Read:
a. P. vs. Kottinger, 45 Phil. 352
b. P vs. GO PIN, August 8, 1955
Tests:
a. Whether the average person applying to contemporary community
standards would find the work appeals to prurient interest;
b. Whether the work depicts or describes a patently offensive sexual
conduct;
c. Whether the work as a whole lacks serious literary , artistic, political
or scientific value.
c. Miller vs. California, 37 L. Ed. 2d 419
d. Ginsberg vs. New York,390 U.S. 629
e. Pita vs. CA, 178 SCRA 362 (A City Mayor may not order the
warrantless seizure of magazines which he believes to be obscene;
otherwise, he will become the complainant, prosecutor and judge at the
same time. He should obtain a search warrant from a judge)
2. Libel or slander; test ofRead:
a. Lopez and Manila Times cases, supra
b. Quisumbing vs. Lopez, 96 Phil. 510
3. Cases undersub-judice
Read:
a. P. vs. Alarcon, 69 Phil. 265
5. Freedom of assembly and to petition the government
grievances

for redress of

INTEGRATED BAR OF THE PHILIPPINES VS.

MANILA MAYOR JOSE LITO ATIENZA, G.R. No.
175241, February 24, 2010
CARPIO MORALES, J.:
Petitioners Integrated Bar of the Philippines (IBP) and lawyers H. Harry L.
Roque and Joel R. Butuyan appeal the June 28, 2006 Decision and the October
26, 2006 Resolution of the Court of Appeals that found no grave abuse of

167
discretion on the part of respondent Jose Lito Atienza, the then mayor of
Manila, in granting a permit to rally in a venue other than the one applied for by
the IBP.
On June 15, 2006, the IBP, through its then National President Jose
Anselmo Cadiz (Cadiz), filed with the Office of the City Mayor of Manila a letter
application for a permit to rally at the foot of Mendiola Bridge on June 22, 2006
from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers and members,
law students and multi-sectoral organizations.
Respondent issued a permit dated June 16, 2006 allowing the IBP to stage a
rally on given date but indicated therein Plaza Miranda as the venue, instead of
Mendiola Bridge, which permit the IBP received on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a
petition for certiorari docketed as CA-G.R. SP No. 94949. The petition having
been unresolved within 24 hours from its filing, petitioners filed before this Court
on June 22, 2006 a petition for certiorari docketed as G.R. No. 172951 which
assailed the appellate courts inaction or refusal to resolve the petition within the
period provided under the Public Assembly Act of 1985.
The Court, by Resolutions of July 26, 2006, August 30, 2006 and
November 20, 2006, respectively, denied the petition for being moot and
academic, denied the relief that the petition be heard on the merits in view of the
pendency of CA-G.R. SP No. 94949, and denied the motion for reconsideration.
The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz
discussed with P/Supt. Arturo Paglinawan whose contingent from the Manila
Police District (MPD) earlier barred petitioners from proceeding thereto.
Petitioners allege that the participants voluntarily dispersed after the peaceful
conduct of the program.
The MPD thereupon instituted on June 26, 2006 a criminal action, docketed
as I.S. No. 06I-12501, against Cadiz for violating the Public Assembly Act in
staging a rally at a venue not indicated in the permit, to which charge Cadiz filed a
Counter-Affidavit of August 3, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by
the first assailed issuance, that the petition became moot and lacked merit. The
appellate court also denied petitioners motion for reconsideration by the second
assailed issuance.
Hence, the filing of the present petition for review on certiorari, to which
respondent filed his Comment of November 18, 2008 which merited petitioners
Reply of October 2, 2009.
ISSUE:

168
The main issue is whether the appellate court erred in holding that the
modification of the venue in IBPs rally permit does not constitute grave abuse of
discretion.
Petitioners assert that the partial grant of the application runs contrary to
the Pubic Assembly Act and violates their constitutional right to freedom of
expression and public assembly.
HELD:
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June 21, 2006
became moot upon the passing of the date of the rally on June 22, 2006.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon would
be of no practical use or value. Generally, courts decline jurisdiction over such
case or dismiss it on ground of mootness. However, even in cases where
supervening events had made the cases moot, this Court did not hesitate to resolve
the legal or constitutional issues raised to formulate controlling principles to guide
the bench, bar and public. Moreover, as an exception to the rule on mootness,
courts will decide a question otherwise moot if it is capable of repetition, yet
evading review.
In the present case, the question of the legality of a modification of a permit
to rally will arise each time the terms of an intended rally are altered by the
concerned official, yet it evades review, owing to the limited time in processing
the application where the shortest allowable period is five days prior to the
assembly. The susceptibility of recurrence compels the Court to definitively
resolve the issue at hand.
Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application (a) It shall be the duty of the mayor or any official acting in his
behalf to issue or grant a permit unless there is clear and convincing
evidence that the public assembly will create a clear and present
danger to public order, public safety, public convenience, public
morals or public health.
(b) The mayor or any official acting in his behalf shall act on the
application within two (2) working days from the date the
application was filed, failing which, the permit shall be deemed
granted. Should for any reason the mayor or any official acting in
his behalf refuse to accept the application for a permit, said
application shall be posted by the applicant on the premises of the
office of the mayor and shall be deemed to have been filed.

169

(c) If the mayor is of the view that there is imminent and grave
danger of a substantive evil warranting the denial or modification of
the permit, he shall immediately inform the applicant who must be
heard on the matter.
(d) The action on the permit shall be in writing and served on the
application [sic] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the
application or modifies the terms thereof in his permit, the applicant
may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the
Municipal Trial Court, the Municipal Circuit Trial Court, the
Regional Trial Court, or the Intermediate Appellate Court, its
decisions may be appealed to the appropriate court within fortyeight (48) hours after receipt of the same. No appeal bond and
record on appeal shall be required. A decision granting such permit
or modifying it in terms satisfactory to the applicant shall, be
immediately executory.
(g) All cases filed in court under this Section shall be decided
within twenty-four (24) hours from date of filing. Cases filed
hereunder shall be immediately endorsed to the executive judge for
disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme
Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby
allowed. (underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita,
the Court reiterated:
x x x Freedom of assembly connotes the right of the people
to meet peaceably for consultation and discussion of matters of
public concern. It is entitled to be accorded the utmost deference
and respect. It is not to be limited, much less denied, except on a
showing, as is the case with freedom of expression, of a clear
and present danger of a substantive evil that the state has a
right to prevent. Even prior to the 1935 Constitution, Justice
Malcolm had occasion to stress that it is a necessary consequence of
our republican institutions and complements the right of free
speech. To paraphrase the opinion of Justice Rutledge, speaking for
the majority of the American Supreme Court in Thomas v. Collins,
it was not by accident or coincidence that the rights to freedom of
speech and of the press were coupled in a single guarantee with the

170
rights of the people peaceably to assemble and to petition the
government for redress of grievances. All these rights, while not
identical, are inseparable. In every case, therefore, where there is a
limitation placed on the exercise of this right, the judiciary is called
upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise
of this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals,
public health, or any other legitimate public interest. (emphasis
supplied)
The Court in Bayan stated that the provisions of the Public Assembly Act of
1985 practically codified the 1983 ruling in Reyes v. Bagatsing. In juxtaposing
Sections 4 to 6 of the Public Assembly Act with the pertinent portion of the Reyes
case, the Court elucidated as follows:
x x x [The public official concerned shall] appraise whether there may be
valid objections to the grant of the permit or to its grant but at another
public place. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the standard for the
decision reached. If he is of the view that there is such an imminent and
grave danger of a substantive evil, the applicants must be heard on the
matter. Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded, they
can have recourse to the proper judicial authority. (italics and
underscoring supplied)
In modifying the permit outright, respondent gravely abused his
discretion when he did not immediately inform the IBP who should have
been heard first on the matter of his perceived imminent and grave danger of
a substantive evil that may warrant the changing of the venue. The
opportunity to be heard precedes the action on the permit, since the
applicant may directly go to court after an unfavorable action on the permit.
Respondent failed to indicate how he had arrived at modifying the terms of
the permit against the standard of a clear and present danger test which, it
bears repeating, is an indispensable condition to such modification. Nothing
in the issued permit adverts to an imminent and grave danger of a substantive evil,
which blank denial or modification would, when granted imprimatur as the
appellate court would have it, render illusory any judicial scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is not devoid
of discretion in determining whether or not a permit would be granted. It is not,
however, unfettered discretion. While prudence requires that there be a realistic
appraisal not of what may possibly occur but of what may probably occur, given
all the relevant circumstances, still the assumption especially so where the
assembly is scheduled for a specific public place is that the permit must be for
the assembly being held there. The exercise of such a right, in the language of

171
Justice Roberts, speaking for the American Supreme Court, is not to be
"abridged on the plea that it may be exercised in some other place.
(emphasis and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or
explanation for his action. It smacks of whim and caprice for respondent to just
impose a change of venue for an assembly that was slated for a specific public
place. It is thus reversible error for the appellate court not to
have found such
grave abuse of discretion.
The Court DECLARES that respondent committed grave abuse of
discretion in modifying the rally permit issued on June 16, 2006 insofar as it
altered the venue from Mendiola Bridge to Plaza Miranda.
GESITE et al. vs. COURT OF APPEALS, 444 SCRA 51
Freedom of public school teachers to peaceably assemble and petition the
government for redress of grievances; right of public school teachers to
form union.
The petitioners admitted that they participated in concerted mass
actions in Metro Manila from September to the first half of October, 1990
which temporarily disrupted classes in Metro Manila but they claimed that
they were not on strike. They claimed that they were merely exercising
their constitutional right to peaceably assemble and petition the
government for redress of their grievances. Thus, they may not be
penalized administratively.
HELD:
The issue of whether or not the mass action launched by the public
school teachers during the period from September up to the 1 st half of
October, 1990 was a strike or not has been decided in the case of
MANILA PUBLIC SCHOOL TEACHERS ASSOCIATION VS.
LAGUIO, 200 SCRA 323 where it was held that these mass actions were
to all intents and purposes a strike; they constituted a concerted and
unauthorized stoppage of, or absence from, work which it was the
teachers duty to perform, undertaken for essentially economic reasons.
It is undisputed fact that there was a work stoppage and that
petitioners purpose was to realize their demands by withholding their
services. The fact that the conventional term strike was not used by the
striking employees to describe their common course of action is
inconsequential, SINCE THE SUBSTANCE OF THE SITUATION, AND
NOT ITS APPEARANCE, WILL BE DEEMED CONTROLLING.
Despite the constitutional right to form associations under the
Constitution, employees in the public service may not engage in strikes,

172
mass leaves, walkouts and other forms of mass actions that will lead to
temporary stoppage or disruption of public service. The right of
government employees to organize IS LIMITED TO THE FORMATIONS
OF UNIONS OR ASSOCIATIONS ONLY, WITHOUT INCLUDING
THE RIGHT TO STRIKE. (Bangalisan vs. CA, 276 SCRA 619)
The petitioners are not therefore entitled to their salaries during
their suspension because the general proposition is that a public official is
not entitled to any compensation if he had not rendered any service.

BAYAN, KARAPATAN,
KILUSANG MAGBUBUKID
NG
PILIPINAS (KMP), and GABRIELA vs. EDUARDO ERMITA, in his
capacity as Executive Secretary, Manila City Mayor LITO ATIENZA,
Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO,
NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District
Chief Gen. PEDRO BULAONG, G.R. No. 169848, May, 2006
AZCUNA, J.:
The Facts:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838, allege that
they are citizens and taxpayers of the Philippines and that their rights as
organizations and individuals were violated when the rally they
participated in on October 6, 2005 was violently dispersed by policemen
implementing Batas Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del
Prado, et al., in G.R. No. 169848, who allege that they were injured,
arrested and detained when a peaceful mass action they held on September
26, 2005 was preempted and violently dispersed by the police. They
further assert that on October 5, 2005, a group they participated in
marched to Malacaang to protest issuances of the Palace which, they
claim, put the country under an undeclared martial rule, and the protest
was likewise dispersed violently and many among them were arrested and
suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in
G.R. No. 169881, allege that they conduct peaceful mass actions and that
their rights as organizations and those of their individual members as
citizens, specifically the right to peaceful assembly, are affected by Batas
Pambansa No. 880 and the policy of Calibrated Preemptive Response
(CPR) being followed to implement it.

173
KMU, et al., claim that on October 4, 2005, a rally KMU cosponsored was to be conducted at the Mendiola bridge but police blocked
them along C.M. Recto and Lepanto Streets and forcibly dispersed them,
causing injuries to several of their members. They further allege that on
October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was
scheduled to proceed along Espaa Avenue in front of the University of
Santo Tomas and going towards Mendiola bridge. Police officers blocked
them along Morayta Street and prevented them from proceeding further.
They were then forcibly dispersed, causing injuries on one of them. Three
other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in
toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the
policy of CPR. They seek to stop violent dispersals of rallies under the
no permit, no rally policy and the CPR policy recently announced.
B.P. No. 880, The Public Assembly Act of 1985, provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their
Right Peaceably To Assemble And Petition The Government
[And] For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
SECTION 1. Title . This Act shall be known as The Public
Assembly Act of 1985.
SEC. 2. Declaration of policy. The constitutional right of the
people peaceably to assemble and petition the government for redress of
grievances is essential and vital to the strength and stability of the State.
To this end, the State shall ensure the free exercise of such right without
prejudice to the rights of others to life, liberty and equal protection of the
law.
SEC. 3. Definition of terms. For purposes of this Act:
(b)
Public place shall include any highway, boulevard,
avenue, road, street, bridge or other thoroughfare, park, plaza square,
and/or any open space of public ownership where the people are allowed
access.
(c)
Maximum tolerance means the highest degree of restraint
that the military, police and other peace keeping authorities shall observe
during a public assembly or in the dispersal of the same.
SEC. 4. Permit when required and when not required.-- A written
permit shall be required for any person or persons to organize and hold a
public assembly in a public place. However, no permit shall be required if

174
the public assembly shall be done or made in a freedom park duly
established by law or ordinance or in private property, in which case only
the consent of the owner or the one entitled to its legal possession is
required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations
of said educational institution. Political meetings or rallies held during any
election campaign period as provided for by law are not covered by this
Act.
SEC. 5. Application requirements.-- All applications for a permit
shall comply with the following guidelines:
1.
The applications shall be in writing and shall include the
names of the leaders or organizers; the purpose of such public assembly;
the date, time and duration thereof, and place or streets to be used for the
intended activity; and the probable number of persons participating, the
transport and the public address systems to be used.
2.
The application shall incorporate
responsibility of applicant under Section 8 hereof.

the

duty

and

3.
The application shall be filed with the office of the mayor
of the city or municipality in whose jurisdiction the intended activity is to
be held, at least five (5) working days before the scheduled public
assembly.
4.
Upon receipt of the application, which must be duly
acknowledged in writing, the office of the city or municipal mayor shall
cause the same to immediately be posted at a conspicuous place in the city
or municipal building.
SEC. 6. Action to be taken on the application.
1.
It shall be the duty of the mayor or any official acting in his
behalf to issue or grant a permit unless there is clear and convincing
evidence that the public assembly will create a clear and present danger to
public order, public safety, public convenience, public morals or public
health.
2.
The mayor or any official acting in his behalf shall act on
the application within two (2) working days from the date the application
was filed, failing which, the permit shall be deemed granted. Should for
any reason the mayor or any official acting in his behalf refuse to accept
the application for a permit, said application shall be posted by the
applicant on the premises of the office of the mayor and shall be deemed
to have been filed.
3.
If the mayor is of the view that there is imminent and grave
danger of a substantive evil warranting the denial or modification of the

175
permit, he shall immediately inform the applicant who must be heard on
the matter.
4.
The action on the permit shall be in writing and served on
the applica[nt] within twenty-four hours.
5.
If the mayor or any official acting in his behalf denies the
application or modifies the terms thereof in his permit, the applicant may
contest the decision in an appropriate court of law.
6.
In case suit is brought before the Metropolitan Trial Court,
the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional
Trial Court, or the Intermediate Appellate court, its decisions may be
appealed to the appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall be required. A
decision granting such permit or modifying if in terms satisfactory to the
applicant shall be immediately executory.
7.
All cases filed in court under this section shall be decided
within twenty-four (24) hours from date of filing. Cases filed hereunder
shall be immediately endorsed to the executive judge for disposition or, in
his absence, to the next in rank.
8.

In all cases, any decision may be appealed to the Supreme

Court.
CPR, on the other hand, is a policy set forth in a press release by
Malacaang dated September 21, 2005, shown in Annex A to the
Petition in G.R. No. 169848, thus:
Malacaang
Manila, Philippines
Release No. 2

Official
NEWS
September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of antigovernment groups to inflame the political situation, sow disorder and
incite people against the duty constituted authorities, we have instructed
the PNP as well as the local government units to strictly enforce a no
permit, no rally policy, disperse groups that run afoul of this standard and
arrest all persons violating the laws of the land as well as ordinances on
the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in
lieu of maximum tolerance. The authorities will not stand aside while

176
those with ill intent are herding a witting or unwitting mass of people
and inciting them into actions that are inimical to public order, and
the peace of mind of the national community.
Unlawful mass actions will be dispersed. The majority of lawabiding citizens have the right to be protected by a vigilant and proactive
government.
We appeal to the detractors of the government to engage in lawful
and peaceful conduct befitting of a democratic society.
The Presidents call for unity and reconciliation stands, based on
the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is
clearly a violation of the Constitution and the International Covenant on
Civil and Political Rights and other human rights treaties of which the
Philippines is a signatory.
They argue that B.P. No. 880 requires a permit before one can
stage a public assembly regardless of the presence or absence of a clear
and present danger. It also curtails the choice of venue and is thus
repugnant to the freedom of expression clause as the time and place of a
public assembly form part of the message for which the expression is
sought. Furthermore, it is not content-neutral as it does not apply to mass
actions in support of the government. The words lawful cause,
opinion, protesting or influencing suggest the exposition of some
cause not espoused by the government. Also, the phrase maximum
tolerance shows that the law applies to assemblies against the
government because they are being tolerated. As a content-based
legislation, it cannot pass the strict scrutiny test.
Furthermore, the law delegates powers to the Mayor without
providing clear standards. The two standards stated in the laws (clear and
present danger and imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act
that alters the standard of maximum tolerance set forth in B.P. No. 880,
aside from being void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no
limits on the right to assembly and therefore B.P. No. 880 cannot put the
prior requirement of securing a permit. And even assuming that the
legislature can set limits to this right, the limits provided are unreasonable:
First, allowing the Mayor to deny the permit on clear and convincing
evidence of a clear and present danger is too comprehensive. Second, the
five-day requirement to apply for a permit is too long as certain events
require instant public assembly, otherwise interest on the issue would
possibly wane.

177

As to the CPR policy, they argue that it is preemptive, that the

government takes action even before the rallyists can perform their act,
and that no law, ordinance or executive order supports the policy.
Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880
and violates the Constitution as it causes a chilling effect on the exercise
by the people of the right to peaceably assemble.
I s s u e s:
4.

On the constitutionality of Batas Pambansa No. 880, specifically Sections

4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160:

1.
1.
2.
3.
4.

Are these content-neutral or content-based regulations?

Are they void on grounds of overbreadth or vagueness?
Do they constitute prior restraint?
Are they undue delegations of powers to Mayors?
Do they violate international human rights treaties and the Universal
Declaration of Human Rights?

5.

On the constitutionality and legality of the policy of Calibrated Preemptive

Response (CPR):

1.
2.
3.

Is the policy void on its face or due to vagueness?

Is it void for lack of publication?
Is the policy of CPR void as applied to the rallies of September 26 and
October 4, 5 and 6, 2005?
H e l d:
Petitioners standing cannot be seriously challenged. Their right as
citizens to engage in peaceful assembly and exercise the right of petition,
as guaranteed by the Constitution, is directly affected by B.P. No. 880
which requires a permit for all who would publicly assemble in the
nations streets and parks. They have, in fact, purposely engaged in public
assemblies without the required permits to press their claim that no such
permit can be validly required without violating the Constitutional
guarantee. Respondents, on the other hand, have challenged such action
as contrary to law and dispersed the public assemblies held without the
permit.
Section 4 of Article III of the Constitution provides:
SEC. 4. No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and
petition for redress of grievances is, together with freedom of speech, of

178
expression, and of the press, a right that enjoys primacy in the realm of
constitutional protection. For these rights constitute the very basis of a
functional democratic polity, without which all the other rights would be
meaningless and unprotected. As stated in Jacinto v. CA, the Court, as
early as the onset of this century, in U.S. v. Apurado already upheld the
right to assembly and petition, as follows:
There is no question as to the petitioners rights to peaceful
assembly to petition the government for a redress of grievances and, for
that matter, to organize or form associations for purposes not contrary to
law, as well as to engage in peaceful concerted activities. These rights are
guaranteed by no less than the Constitution, particularly Sections 4 and 8
of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article
XIII. Jurisprudence abounds with hallowed pronouncements defending
and promoting the peoples exercise of these rights. As early as the onset
of this century, this Court in U.S. vs. Apurado, already upheld the right to
assembly and petition and even went as far as to acknowledge:
It is rather to be expected that more or less disorder will mark the
public assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always wrought to a high
pitch of excitement, and the greater, the grievance and the more intense
the feeling, the less perfect, as a rule will be the disciplinary control of the
leaders over their irresponsible followers. But if the prosecution be
permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly
as a seditious and tumultuous rising against the authorities, then the right
to assemble and to petition for redress of grievances would expose all
those who took part therein to the severest and most unmerited
punishment, if the purposes which they sought to attain did not happen to
be pleasing to the prosecuting authorities. If instances of disorderly
conduct occur on such occasions, the guilty individuals should be sought
out and punished therefor, but the utmost discretion must be exercised in
drawing the line between disorderly and seditious conduct and between an
essentially peaceable assembly and a tumultuous uprising.
Again, in Primicias v. Fugoso, the Court likewise sustained the
primacy of freedom of speech and to assembly and petition over comfort
and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while
sacrosanct, is not absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and
petition the government for redress of grievances, are fundamental
personal rights of the people recognized and guaranteed by the
constitutions of democratic countries. But it is a settled principle growing
out of the nature of well-ordered civil societies that the exercise of those
rights is not absolute for it may be so regulated that it shall not be

179
injurious to the equal enjoyment of others having equal rights, nor
injurious to the rights of the community or society. The power to regulate
the exercise of such and other constitutional rights is termed the sovereign
police power, which is the power to prescribe regulations, to promote
the health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the
government through its legislative branch by the enactment of laws
regulating those and other constitutional and civil rights, and it may be
delegated to political subdivisions, such as towns, municipalities and cities
by authorizing their legislative bodies called municipal and city councils
enact ordinances for purpose
Reyes v. Bagatsing further expounded on the right and its limits, as
follows:
1.
It is thus clear that the Court is called upon to protect the
exercise of the cognate rights to free speech and peaceful assembly, arising
from the denial of a permit. The Constitution is quite explicit: No law
shall be passed abridging the freedom of speech, or of the press, or the
right of the people peaceably to assemble and petition the Government for
redress of grievances. Free speech, like free press, may be identified
with the liberty to discuss publicly and truthfully any matter of public
concern without censorship or punishment. There is to be then no
previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or
contempt proceedings unless there be a clear and present danger of a
substantive evil that [the State] has a right to prevent. Freedom of
assembly connotes the right of the people to meet peaceably for
consultation and discussion of matters of public concern. It is entitled to
be accorded the utmost deference and respect. It is not to be limited, much
less denied, except on a showing, as is the case with freedom of
expression, of a clear and present danger of a substantive evil that the state
has a right to prevent. Even prior to the 1935 Constitution, Justice
Malcolm had occasion to stress that it is a necessary consequence of our
republican institutions and complements the right of free speech. To
paraphrase the opinion of Justice Rutledge, speaking for the majority of
the American Supreme Court in Thomas v. Collins, it was not by accident
or coincidence that the rights to freedom of speech and of the press were
coupled in a single guarantee with the right of the people peaceably to
assemble and to petition the government for redress of grievances. All
these rights, while not identical, are inseparable. In every case, therefore,
where there is a limitation placed on the exercise of this right, the judiciary
is called upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise of this
right, so fundamental to the maintenance of democratic institutions, is the
danger, of a character both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other legitimate public interest.

180
2.
Nowhere is the rationale that underlies the freedom of
expression and peaceable assembly better expressed than in this excerpt
from an opinion of Justice Frankfurter: It must never be forgotten,
however, that the Bill of Rights was the child of the Enlightenment. Back
of the guaranty of free speech lay faith in the power of an appeal to reason
by all the peaceful means for gaining access to the mind. It was in order
to avert force and explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was given a generous
scope. But utterance in a context of violence can lose its significance as
an appeal to reason and become part of an instrument of force. Such
utterance was not meant to be sheltered by the Constitution. What was
rightfully stressed is the abandonment of reason, the utterance, whether
verbal or printed, being in a context of violence. It must always be
remembered that this right likewise provides for a safety valve, allowing
parties the opportunity to give vent to their views, even if contrary to the
prevailing climate of opinion.
For if the peaceful means of
communication cannot be availed of, resort to non-peaceful means may be
the only alternative. Nor is this the sole reason for the expression of
dissent. It means more than just the right to be heard of the person who
feels aggrieved or who is dissatisfied with things as they are. Its value
may lie in the fact that there may be something worth hearing from the
dissenter. That is to ensure a true ferment of ideas. There are, of course,
well-defined limits. What is guaranteed is peaceable assembly. One may
not advocate disorder in the name of protest, much less preach rebellion
under the cloak of dissent. The Constitution frowns on disorder or tumult
attending a rally or assembly. Resort to force is ruled out and outbreaks of
violence to be avoided. The utmost calm though is not required. As
pointed out in an early Philippine case, penned in 1907 to be precise,
United States v. Apurado: It is rather to be expected that more or less
disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will
be the disciplinary control of the leaders over their irresponsible
followers. It bears repeating that for the constitutional right to be
invoked, riotous conduct, injury to property, and acts of vandalism must be
avoided. To give free rein to ones destructive urges is to call for
condemnation. It is to make a mockery of the high estate occupied by
intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and
present danger of a substantive evil, on the choice of Luneta as the place
where the peace rally would start. The Philippines is committed to the
view expressed in the plurality opinion, of 1939 vintage of, Justice
Roberts in Hague v. CIO: Whenever the title of streets and parks may
rest, they have immemorially been held in trust for the use of the public
and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public
questions. Such use of the streets and public places has, from ancient

181
times, been a part of the privileges, immunities, rights and liberties of
citizens. The privilege of a citizen of the United States to use the streets
and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but must not, in the guise of
respondents, be abridged or denied. The above excerpt was quoted with
approval in Primicias v. Fugoso. Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this
Court categorically affirmed that plazas or parks and streets are outside the
commerce of man and thus nullified a contract that leased Plaza Soledad
of plaintiff-municipality. Reference was made to such plaza being a
promenade for public use, which certainly is not the only purpose that it
could serve. To repeat, there can be no valid reason why a permit should
not be granted for the proposed march and rally starting from a public park
that is the Luneta.
4.
Neither can there be any valid objection to the use of the
streets to the gates of the US embassy, hardly two blocks away at the
Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on
the matter. In holding that the then Mayor Fugoso of the City of Manila
should grant a permit for a public meeting at Plaza Miranda in Quiapo,
this Court categorically declared: Our conclusion finds support in the
decision in the case of Willis Cox v. State of New Hampshire, 312 U.S.,
569. In that case, the statute of New Hampshire P.L. chap. 145, section 2,
providing that no parade or procession upon any ground abutting thereon,
shall be permitted unless a special license therefor shall first be obtained
from the selectmen of the town or from licensing committee, was
construed by the Supreme Court of New Hampshire as not conferring
upon the licensing board unfettered discretion to refuse to grant the
license, and held valid. And the Supreme Court of the United States, in its
decision (1941) penned by Chief Justice Hughes affirming the judgment of
the State Supreme Court, held that a statute requiring persons using the
public streets for a parade or procession to procure a special license
therefor from the local authorities is not an unconstitutional abridgment of
the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are strictly
limited, in the issuance of licenses, to a consideration of the time, place,
and manner of the parade or procession, with a view to conserving the
public convenience and of affording an opportunity to provide proper
policing, and are not invested with arbitrary discretion to issue or refuse
license, * * *. Nor should the point made by Chief Justice Hughes in a
subsequent portion of the opinion be ignored: Civil liberties, as
guaranteed by the Constitution, imply the existence of an organized
society maintaining public order without which liberty itself would be lost
in the excesses of unrestricted abuses. The authority of a municipality to
impose regulations in order to assure the safety and convenience of the
people in the use of public highways has never been regarded as
inconsistent with civil liberties but rather as one of the means of

182
safeguarding the good order upon which they ultimately depend. The
control of travel on the streets of cities is the most familiar illustration of
this recognition of social need. Where a restriction of the use of highways
in that relation is designed to promote the public convenience in the
interest of all, it cannot be disregarded by the attempted exercise of some
civil right which in other circumstances would be entitled to protection.
xxx
6.
x x x The principle under American doctrines was given
utterance by Chief Justice Hughes in these words: The question, if the
rights of free speech and peaceable assembly are to be preserved, is not as
to the auspices under which the meeting is held but as to its purpose; not
as to the relations of the speakers, but whether their utterances transcend
the bounds of the freedom of speech which the Constitution protects.
There could be danger to public peace and safety if such a gathering were
marked by turbulence. That would deprive it of its peaceful character. It
is true that the licensing official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit would be granted. It is
not, however, unfettered discretion. While prudence requires that there be
a realistic appraisal not of what may possibly occur but of what may
probably occur, given all the relevant circumstances, still the assumption
especially so where the assembly is scheduled for a specific public place
is that the permit must be for the assembly being held there. The exercise
of such a right, in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be abridged on the plea that it may be
exercised in some other place.
xxx
8.
By way of a summary. [a] The applicants for a permit to
hold an assembly should inform the licensing authority of the date,
the public place where and the time when it will take place. [b] If it
were a private place, only the consent of the owner or the one entitled
to its legal possession is required. [c] Such application should be filed
well ahead in time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the permit or to
its grant but at another public place. [d] It is an indispensable
condition to such refusal or modification that the clear and present
danger test be the standard for the decision reached. [e] If he is of the
view that there is such an imminent and grave danger of a substantive
evil, the applicants must be heard on the matter. [f] Thereafter, his
decision, whether favorable or adverse, must be transmitted to them
at the earliest opportunity. Thus if so minded, they can have recourse to
the proper judicial authority. Free speech and peaceable assembly, along
with the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the
judiciary, -- even more so than on the other departments rests the grave
and delicate responsibility of assuring respect for and deference to such
preferred rights. No verbal formula, no sanctifying phrase can, of course,

183
dispense with what has been so felicitously termed by Justice Holmes as
the sovereign prerogative of judgment. Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of such
rights, enjoying as they do precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in
Reyes.
The provisions of B.P. No. 880 practically codify the ruling in
Reyes:
Reyes v.
Bagatsing
(G.R.
No.
L-65366,
November 9, 1983,
125 SCRA 553,
569)
8. By way of a summary.
The applicants for a permit to
hold an assembly should
inform the licensing authority
of the date, the public place
where and the time when it
will take place. If it were a
private place, only the
consent of the owner or the
one entitled to its legal
possession is required. Such
application should be filed
well ahead in time to enable
the public official concerned
to appraise whether there
may be valid objections to
the grant of the permit or to
its grant but at another public
place. It is an indispensable
condition to such refusal or
modification that the clear
and present danger test be the
standard for the decision
reached. If he is of the view
that there is such an
imminent and grave danger
of a substantive evil, the
applicants must be heard on
the matter. Thereafter, his
decision, whether favorable

B.P. No.
880

SEC. 4. Permit when

required and when not
required.-A written
permit shall be required for
any person or persons to
organize and hold a public
assembly in a public place.
However, no permit shall
be required if the public
assembly shall be done or
made in a freedom park
duly established by law or
ordinance or in private
property, in which case
only the consent of the
owner or the one entitled to
its legal possession is
required, or in the campus
of a government-owned
and operated educational
institution which shall be
subject to the rules and
regulations
of
said
educational
institution.
Political meetings or rallies
held during any election
campaign
period
as
provided for by law are not
covered by this Act.
SEC. 5.
Application
requirements.-All

184
or
adverse,
must
be
transmitted to them at the
earliest opportunity. Thus if
so minded, they can have
recourse to the proper judicial
authority.

applications for a permit

shall comply with the
following guidelines:
(a) The applications
shall be in writing and shall
include the names of the
leaders or organizers; the
purpose of such public
assembly; the date, time
and duration thereof, and
place or streets to be used
for the intended activity;
and the probable number of
persons participating, the
transport and the public
address systems to be used.
(b) The application shall
incorporate the duty and
responsibility of applicant
under Section 8 hereof.
(c) The application shall
be filed with the office of
the mayor of the city or
municipality in whose
jurisdiction the intended
activity is to be held, at
least five (5) working days
before the scheduled public
assembly.
(d) Upon receipt of the
application, which must be
duly acknowledged in
writing, the office of the
city or municipal mayor
shall cause the same to
immediately be posted at a
conspicuous place in the
city or municipal building.
SEC. 6. Action to be
taken on the application.
(a) It shall be the duty of
the mayor or any official
acting in his behalf to issue
or grant a permit unless
there
is
clear
and
convincing evidence that
the public assembly will
create a clear and present

185
danger to public order,
public
safety,
public
convenience, public morals
or public health.
(b) The mayor or any
official acting in his behalf
shall act on the application
within two (2) working
days from the date the
application
was
filed,
failing which, the permit
shall be deemed granted.
Should for any reason the
mayor or any official
acting in his behalf refuse
to accept the application
for
a
permit,
said
application shall be posted
by the applicant on the
premises of the office of
the mayor and shall be
deemed to have been filed.
(c) If the mayor is of the
view that there is imminent
and grave danger of a
substantive evil warranting
the denial or modification
of the permit, he shall
immediately inform the
applicant who must be
heard on the matter.
(d) The action on the
permit shall be in writing
and
served
on
the
applica[nt] within twentyfour hours.
(e) If the mayor or any
official acting in his behalf
denies the application or
modifies the terms thereof
in his permit, the applicant
may contest the decision in
an appropriate court of law.
(f) In case suit is brought
before the Metropolitan
Trial Court, the Municipal
Trial Court, the Municipal
Circuit Trial Court, the
Regional Trial Court, or the

186
Intermediate
Appellate
Court, its decisions may be
appealed to the appropriate
court within forty-eight
(48) hours after receipt of
the same. No appeal bond
and record on appeal shall
be required. A decision
granting such permit or
modifying it in terms
satisfactory to the applicant
shall
be
immediately
executory.
(g) All cases filed in
court under this section
shall be decided within
twenty-four (24) hours
from date of filing. Cases
filed hereunder shall be
immediately endorsed to
the executive judge for
disposition or, in his
absence, to the next in
rank.
(h) In all cases, any
decision may be appealed
to the Supreme Court.
(i) Telegraphic appeals
to be followed by formal
appeals
are
hereby
allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban
of public assemblies but a restriction that simply regulates the time,
place and manner of the assemblies. This was adverted to in Osmea v.
Comelec,48 where the Court referred to it as a content-neutral regulation
of the time, place, and manner of holding public assemblies.49
A fair and impartial reading of B.P. No. 880 thus readily shows that
it refers to all kinds of public assemblies50 that would use public places.
The reference to lawful cause does not make it content-based because
48
49
50

G.R. No. 132231, March 31, 1998, 288 SCRA 447.

Ibid, p. 478.
Except picketing and other concerted action in strike areas by workers and employees
resulting from a labor dispute, which are governed by the Labor Code and other labor laws;
political meeting or rallies held during any election campaign period, which are governed by the
Election Code and other election related laws; and public assemblies in the campus of a
government-owned and operated educational institution, which shall be subject to the rules and
regulations of said educational institution. (Sec. 3[a] and Sec. 4 of B.P. No. 880).

187
assemblies really have to be for lawful causes, otherwise they would not
be peaceable and entitled to protection. Neither are the words
opinion, protesting and influencing in the definition of public
assembly content based, since they can refer to any subject. The words
petitioning the government for redress of grievances come from the
wording of the Constitution, so its use cannot be avoided. Finally,
maximum tolerance is for the protection and benefit of all rallyists and is
independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear
and present danger to public order, public safety, public convenience,
public morals or public health. This is a recognized exception to the
exercise of the right even under the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights.
Neither is the law overbroad. It regulates the exercise of the
right to peaceful assembly and petition only to the extent needed to avoid
a clear and present danger of the substantive evils Congress has the right
to prevent.
There is, likewise, no prior restraint, since the content of the
speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a
precise and sufficient standard the clear and present danger test stated in
Sec. 6(a). The reference to imminent and grave danger of a substantive
evil in Sec. 6(c) substantially means the same thing and is not an
inconsistent standard. As to whether respondent Mayor has the same
power independently under Republic Act No. 716051 is thus not necessary
to resolve in these proceedings, and was not pursued by the parties in their
arguments.
Finally, for those who cannot wait, Section 15 of the law provides
for an alternative forum through the creation of freedom parks where no
prior permit is needed for peaceful assembly and petition at any time:
SEC. 15. Freedom parks. Every city and municipality in the
country shall within six months after the effectivity of this Act establish or
designate at least one suitable freedom park or mall in their respective
jurisdictions which, as far as practicable, shall be centrally located within
51

The Local Government Code. Specifically, Section 16 stating the general welfare clause,
thus:
SEC. 16. General Welfare. Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and those which are essential to the
promotion of the general welfare. Within their respective territorial jurisdictions, local government
units shall ensure and support among other things, the preservation and enrichment of culture,
promote health and safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and technological capabilities,
improve public morals, enhance economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the comfort and convenience of
their inhabitants.

188
the poblacion where demonstrations and meetings may be held at any time
without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks within the period of
six months from the effectivity this Act.
2
The Court now comes to the matter of the CPR. As stated earlier,
the Solicitor General has conceded that the use of the term should now be
discontinued, since it does not mean anything other than the maximum
tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the
Solicitor General, thus:
The truth of the matter is the policy of calibrated preemptive
response is in consonance with the legal definition of maximum
tolerance under Section 3 (c) of B.P. Blg. 880, which is the highest
degree of restraint that the military, police and other peacekeeping
authorities shall observe during a public assembly or in the dispersal of the
same. Unfortunately, however, the phrase maximum tolerance has
acquired a different meaning over the years. Many have taken it to mean
inaction on the part of law enforcers even in the face of mayhem and
serious threats to public order. More so, other felt that they need not
bother secure a permit when holding rallies thinking this would be
tolerated. Clearly, the popular connotation of maximum tolerance has
departed from its real essence under B.P. Blg. 880.
It should be emphasized that the policy of maximum tolerance is
provided under the same law which requires all pubic assemblies to have a
permit, which allows the dispersal of rallies without a permit, and which
recognizes certain instances when water cannons may be used. This could
only mean that maximum tolerance is not in conflict with a no permit,
no rally policy or with the dispersal and use of water cannons under
certain circumstances for indeed, the maximum amount of tolerance
required is dependent on how peaceful or unruly a mass action is. Our law
enforcers should calibrate their response based on the circumstances on
the ground with the view to preempting the outbreak of violence.
Thus, when I stated that calibrated preemptive response is being
enforced in lieu of maximum tolerance I clearly was not referring to its
legal definition but to the distorted and much abused definition that it has
now acquired. I only wanted to disabuse the minds of the public from the
notion that law enforcers would shirk their responsibility of keeping the
peace even when confronted with dangerously threatening behavior. I
wanted to send a message that we would no longer be lax in enforcing the
law but would henceforth follow it to the letter. Thus I said, we have
instructed the PNP as well as the local government units to strictly

189
enforce a no permit, no rally policy . . . arrest all persons violating the
laws of the land . . . unlawful mass actions will be dispersed. None of
these is at loggerheads with the letter and spirit of Batas Pambansa Blg.
880. It is thus absurd for complainants to even claim that I ordered my corespondents to violate any law.
In sum, this Court reiterates its basic policy of upholding the fundamental
rights of our people, especially freedom of expression and freedom of
assembly. For this reason, the so-called calibrated preemptive response
policy has no place in our legal firmament and must be struck down as a
darkness that shrouds freedom. It merely confuses our people and is used
by some police agents to justify abuses. On the other hand, B.P. No. 880
cannot be condemned as unconstitutional; it does not curtail or unduly
restrict freedoms; it merely regulates the use of public places as to the
time, place and manner of assemblies. Far from being insidious,
maximum tolerance is for the benefit of rallyists, not the government.
The delegation to the mayors of the power to issue rally permits is valid
because it is subject to the constitutionally-sound clear and present
danger standard.
WHEREFORE, the petitions are GRANTED in part, and Calibrated
Preemptive Response (CPR), insofar as it would purport to differ from or
be in lieu of maximum tolerance, is NULL and VOID and respondents are
ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE
the requirements of maximum tolerance.
Read:
1. Right of assembly..31 SCRA 734 and 742
2. Evangelista vs. Earnshaw, 57 Phil 255
3. Primicias vs. Fuguso, 80 Phil. 71
4. De la Cruz vs. Ela, 99 Phil. 346
5. Navarro vs. Villegas, 31 SCRA 731
6. Philippine Blooming Mills Case,51 SCRA 189
7. Reyes vs. Bagatsing, 125 SCRA 553;see
guidelines
8. Ruiz vs. Gordon, 126 SCRA 233
9. Villar vs. TIP, 135 SCRA 705
10. Malabanan vs. Ramento, 129 SCRA 359
11. Carpio vs. Guevara, 106 SCRA 685
12. Nestle' Phils. vs. Sanchez, 154 SCRA 542
13. Arreza vs. Araneta University Foundation, 137
SCRA 94
6. Freedom from prior restraint
Closing a radio station is definitely prior restraint
NEWSOUNDS
BROADCASTING
NETWORK
INC.
and
CONSOLIDATED
BROADCASTING
SYSTEM,
INC.HON.
CEASAR G. DY, FELICISIMO G. MEER, BAGNOS MAXIMO,

190
RACMA FERNANDEZ-GARCIA and THE CITY OF CAUAYAN,
G.R. Nos. 170270 &179411, April 2, 2009
TINGA, J.:
Bombo Radyo Philippines (Bombo Radyo) operates several
radio stations under the AM and FM band throughout the Philippines.
These stations are operated by corporations organized and incorporated by
Bombo Radyo, particularly petitioners Newsounds Broadcasting Network,
Inc. (Newsounds) and Consolidated Broadcasting System, Inc. (CBS).
Among the stations run by Newsounds is Bombo Radyo DZNC Cauayan
(DZNC), an AM radio broadcast station operating out of Cauayan City,
Isabela. CBS, in turn, runs Star FM DWIT Cauayan (Star FM), also
operating out of Cauayan City, airing on the FM band. The service areas of
DZNC and Star FM extend from the province of Isabela to throughout
Region II and the Cordillera region. 52[6] THE ONLY OTHER STATION
OPERATING IN CAUAYAN CITY, ISABELA, is owned by the family of
respondent Mayor Dy.
In 1996, Newsounds commenced relocation of its broadcasting
stations, management office and transmitters on property located in
Minante 2, Cauayan City, Isabela. The property is owned by CBS
Development Corporation (CDC), an affiliate corporation under the
Bombo Radyo network which holds title over the properties used by
Bombo Radyo stations throughout the country.53[7] On 28 June 1996, CDC
was issued by the then municipal government of Cauayan a building
permit authorizing the construction of a commercial establishment on the
property.54[8] On 5 July 1996, the Housing and Land Use Regulatory Board
(HLURB) issued a Zoning Decision certifying the property as
commercial.55[9] That same day, the Office of the Municipal Planning and
Development Coordinator (OMPDC) of Cauayan affirmed that the
commercial structure to be constructed by CDC conformed to local zoning
regulations, noting as well that the location is classified as a Commercial
area.56[10] Similar certifications would be issued by OMPDC from 1997 to
2001.57[11]
A building was consequently erected on the property, and
therefrom, DZNC and Star FM operated as radio stations. Both stations
successfully secured all necessary operating documents, including mayors
52
[6]

Rollo (G.R. No. 179411), p. 13.

53
[7]

Id.

54
[8]

Id. at 90.

55[9]

Id. at 91.

56
[10]

Id. at 92.

57
[11]

Id. at 93-97.

191
permits from 1997 to 2001.58[12] During that period, CDC paid real
property taxes on the property based on the classification of the land as
commercial.59[13]
All that changed beginning in 2002. On 15 January of that year,
petitioners applied for the renewal of the mayors permit. The following
day, the City Assessors Office in Cauayan City noted on CDCs
Declaration of Real Property filed for 2002 confirmed that based on the
existing file, CDCs property was classified as commercial. 60[14] On 28
January, representatives of petitioners formally requested then City Zoning
Administrator-Designate Bagnos Maximo (Maximo) to issue a zoning
clearance for the property.61[15] Maximo, however, required petitioners to
submit either an approved land conversion papers from the Department
of Agrarian Reform (DAR) showing that the property was converted from
prime agricultural land to commercial land, or an approved resolution
from the Sangguniang Bayan or Sangguniang Panglungsod authorizing
the re-classification of the property from agricultural to commercial
land.62[16] Petitioners had never been required to submit such papers
before, and from 1996 to 2001, the OMPDC had consistently certified that
the property had been classified as commercial. THEREAFTER, THE
MUNICIPAL OFFICIALS PADLOCKED THE RADIO STATIONS
BASED ON THE GROUND THAT THE PETITIONERS FAILED TO
SUBMIT THE requisite zoning clearance needed for the issuance of the
mayors permit because there was allegedly no DAR Decision converting
said land from agricultural to commercial.
Petitioners filed a petition for mandamus, docketed as SCA No.
20-171, with the RTC of Cauayan City, Branch 20 to compel the
municipality to allow the radio stations to operate. The petition was
accompanied by an application for the issuance of temporary restraining
order and writ of preliminary prohibitory injunction, both provisional
reliefs being denied by the RTC through an Order dated 20 April 2004.
Thereafter, the petition was dismissed by the RTC as well as the Court of
Appeals.
Hence, this case before the Supreme Court.
I S S U E:

58
[12]

Id. at 98-102.

59
[13]

Id. at 103-110.

60
[14]

Id. at 103.

61
[15]

Id. at 111.

62
[16]

Id. at 18-19.

192
Is

the

closure

of

the

petitioners

radio

stations

constitutional?
HELD:
The closure constitutes prior restraint.
The fundamental constitutional principle that informs our analysis
of both petitions is the freedom of speech, of expression or the press. 63[32]
Free speech and free press may be identified with the liberty to discuss
publicly and truthfully any matter of public interest without censorship
and punishment. There is to be no previous restraint on the communication
of views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings unless there be a
clear and present danger of substantive evil that Congress has a right to
prevent.64[33]
Petitioners have taken great pains to depict their struggle as a
textbook case of denial of the right to free speech and of the press. In their
tale, there is undeniable political color. They admit that in 2001, Bombo
Radyo was aggressive in exposing the widespread election irregularities
in Isabela that appear to have favored respondent Dy and other members
of the Dy political dynasty. 65[34] Respondent Ceasar Dy is the brother of
Faustino Dy, Jr., governor of Isabela from 2001 until he was defeated in
his re-election bid in 2004 by Grace Padaca, a former assistant station
manager at petitioners own DZNC Bombo Radyo. 66[35] A rival AM radio
station in Cauayan City, DWDY, is owned and operated by the Dy
family.67[36] Petitioners likewise direct our attention to a 20 February 2004
article printed in the Philippine Daily Inquirer where Dy is quoted as
intending to file disenfranchisement proceedings against DZNCAM.68[37]
The following undisputed facts bring the issue of free expression to
fore. Petitioners are authorized by law to operate radio stations in Cauayan
City, and had been doing so for some years undisturbed by local
authorities. Beginning in 2002, respondents in their official capacities have
taken actions, whatever may be the motive, that have impeded the ability
of petitioners to freely broadcast, if not broadcast at all. These actions
63
[32]

Article 3, Sec. 4.

64
[33]

Gonzales v. COMELEC, 137 Phil. 471, 492 (1969).

65
[34]

Rollo (G.R. No. 170270), p. 27.

66
[35]
See TJ Burgonio, Isabela gov who ended a dynasty wins RM prize, Philippine Daily Inquirer (1
August 2008), at http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view /20080801-151950/Isabelagov-who-ended-a-dynasty-wins-RM-prize
67
[36]

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

68
[37]

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

193
have ranged from withholding permits to operate to the physical closure of
those stations under color of legal authority. While once petitioners were
able to broadcast freely, the weight of government has since bore down
upon them to silence their voices on the airwaves. An elementary school
child with a basic understanding of civics lessons will recognize that free
speech animates these cases.
Without taking into account any extenuating circumstances that
may favor the respondents, we can identify the bare acts of closing the
radio stations or preventing their operations as an act of prior restraint
against speech, expression or of the press. Prior restraint refers to
official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. 69[38]
While any system of prior restraint comes to court bearing a heavy
burden against its constitutionality,70[39] not all prior restraints on
speech are invalid.71[40]
That the acts imputed against respondents constitute a prior
restraint on the freedom of expression of respondents who happen to be
members of the press is clear enough. There is a long-standing tradition of
special judicial solicitude for free speech, meaning that governmental
action directed at expression must satisfy a greater burden of justification
than governmental action directed at most other forms of behavior.72[41] We
had said in SWS v. COMELEC: Because of the preferred status of the
constitutional rights of speech, expression, and the press, such a measure
is vitiated by a weighty presumption of invalidity. Indeed, any system of
prior restraints of expression comes to this Court bearing a heavy
presumption against its constitutional validity. . . . The Government 'thus
carries a heavy burden of showing justification for the enforcement of
such restraint. There is thus a reversal of the normal presumption of
validity that inheres in every legislation.73[42]
At the same time, jurisprudence distinguishes between a contentneutral regulation, i.e., merely concerned with the incidents of the speech,
or one that merely controls the time, place or manner, and under well
defined standards; and a content-based restraint or censorship, i.e., the
restriction is based on the subject matter of the utterance or speech. 74[43]
Content-based laws are generally treated as more suspect than content69
[38]

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

70
[39]

Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571, 585 (2001); citing New York Times v.
United States, 403 U.S. 713, 714, 29 L. Ed. 2d 822, 824 (1971).
71
[40]

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

72
[41]

GUNTHER, et al., CONSTITUTIONAL LAW (14th ed., 2001), at 964.

73
[42]

SWS v. COMELEC, supra note 39.

74
[43]

Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, 545 SCRA 441, 493.

194
neutral laws because of judicial concern with discrimination in the
regulation of expression.75[44] Content-neutral regulations of speech or of
conduct that may amount to speech, are subject to lesser but still
heightened scrutiny.76[45]
Ostensibly, the act of an LGU requiring a business of proof that the
property from which it operates has been zoned for commercial use can be
argued, when applied to a radio station, as content-neutral since such a
regulation would presumably apply to any other radio station or business
enterprise within the LGU.
However, the circumstances of this case dictate that we view the
action of the respondents as a content-based restraint. In their petition for
mandamus filed with the RTC, petitioners make the following relevant
allegations:
6.1.
With specific reference to DZNC, Newsounds, to this date,
is engaged in discussing public issues that include, among others, the
conduct of public officials that are detrimental to the constituents of
Isabela, including Cauayan City. In view of its wide coverage, DZNC has
been a primary medium for the exercise of the people of Isabela of their
constitutional right to free speech. Corollarily, DZNC has always been at
the forefront of the struggle to maintain and uphold freedom of the press,
and the peoples corollary right to freedom of speech, expression and
petition the government for redress of grievances.
6.2. Newsounds only rival AM station in Cauayan and the rest of
Isabela, DWDY, is owned and operated by the family of respondent Dy. 77
[46]

xxxx
35. Respondents closure of petitioners radio stations is clearly
tainted with ill motives.
35.1. It must be pointed out that in the 2001 elections, Bombo
Radyo was aggressive in exposing the widespread election irregularities in
Isabela that appear to have favored respondent Dy and other members of
the Dy political dynasty. It is just too coincidental that it was only after the
2001 elections (i.e., 2002) that the Mayors Office started questioning
petitioners applications for renewal of their mayors permits.
35.2. In an article found in the Philippine Daily inquirer dated 20
February 2004, respondent Dy was quoted as saying that he will
75
[44]

GUNTHER, et al., supra note 44.

76
[45]

Id. at 957.

77
[46]

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

195
disenfranchise the radio station. Such statement manifests and confirms
that respondents denial of petitioners renewal applications on the ground
that the Property is commercial is merely a pretext and that their real
agenda is to remove petitioners from Cauayan City and suppress the
latters voice. This is a blatant violation of the petitioners constitutional
right to press freedom.
35.3. The timing of respondents closure of petitioners radio
stations is also very telling. The closure comes at a most critical time when
the people are set to exercise their right of suffrage. Such timing
emphasizes the ill motives of respondents.78[47]
All those circumstances lead us to believe that the steps employed
by respondents to ultimately shut down petitioners radio station were
ultimately content-based. The United States Supreme Court generally
treats restriction of the expression of a particular point of view as the
paradigm violation of the First Amendment. 79[53] The facts confronting us
now could have easily been drawn up by a constitutional law professor
eager to provide a plain example on how free speech may be violated.
The Court is of the position that the actions of the respondents
warrant heightened or strict scrutiny from the Court, the test which we
have deemed appropriate in assessing content-based restrictions on free
speech, as well as for laws dealing with freedom of the mind or restricting
the political process, of laws dealing with the regulation of speech, gender,
or race as well as other fundamental rights as expansion from its earlier
applications to equal protection.80[54] The immediate implication of the
application of the strict scrutiny test is that the burden falls upon
respondents as agents of government to prove that their actions do not
infringe upon petitioners constitutional rights. As content regulation
cannot be done in the absence of any compelling reason, 81[55] the burden
lies with the government to establish such compelling reason to infringe
the right to free expression.
It is thus evident that respondents had no valid cause at all to even
require petitioners to secure approved land conversion papers from the
DAR showing that the property was converted from prime agricultural
land to commercial land. That requirement, assuming that it can be
demanded by a local government in the context of approving mayors
permits, should only obtain upon clear proof that the property from where
the business would operate was classified as agricultural under the LGUs
land use plan or zoning ordinances and other relevant laws. No evidence
78
[47]

Id. at 178-179.

79
[53]

GUNTHER et. al., supra note 44.

80
[54]

See White Light v. Court of Appeals, G.R. No. 122846, 20 January 2009.

81
[55]

Osmea v. COMELEC, 351 Phil. 692, 711 (1998).

196
to that effect was presented by the respondents either to the petitioners, or
to the courts.
Having established that respondents had violated petitioners legal
and constitutional rights, let us now turn to the appropriate reliefs that
should be granted.
We turn to the issue of damages. Petitioners had sought to recover
from respondents P8 Million in temperate damages, P1 Million in
exemplary damages, and P1 Million in attorneys fees. Given respondents
clear violation of petitioners constitutional guarantee of free expression,
the right to damages from respondents is squarely assured by Article 32
(2) of the Civil Code, which provides:
Art. 32. Any public officer or employee, or any private individual,
who directly or indirectly obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights and liberties of another
person shall be liable to the latter for damages:
x x x x
(2) Freedom of speech;
We noted in Lim v. Ponce de Leon that [p]ublic officials in the
past have abused their powers on the pretext of justifiable motives or good
faith in the performance of their duties [and] the object of [Article 32 of
the Civil Code] is to put an end to official abuse by plea of the good
faith.82[85] The application of Article 32 not only serves as a measure of
pecuniary recovery to mitigate the injury to constitutional rights, it
likewise serves notice to public officers and employees that any violation
on their part of any persons guarantees under the Bill of Rights will meet
with final reckoning.
The present prayer for temperate damages is premised on the
existence of pecuniary injury to petitioner due to the actions of
respondents, the amount of which nevertheless being difficult to prove.83[86]
Temperate damages avail when the court finds that some pecuniary loss
has been suffered but its amount can not, from the nature of the case, be
proved with certainty.84[87] The existence of pecuniary injury at bar cannot
be denied. Petitioners had no way of knowing it when they filed their
petition, but the actions of respondents led to the closure of their radio
stations from June 2004 until this Court issued a writ of preliminary
82
[85]

160 Phil. 991, 1001 (1975). See also MHP Garments, Inc., v. Court of Appeals, G.R. No. 86720, 2
September 1994, 236 SCRA 227, 235.
83
[86]

Rollo (G.R. No. 179411), p. 183.

84
[87]

See CIVIL CODE, Art. 2224.

197
injunction in January 2006.85[88] The lost potential income during that one
and a half year of closure can only be presumed as substantial enough.
Still, despite that fact, possibly unanticipated when the original amount for
claimed temperate damages was calculated, petitioners have maintained
before this Court the same amount, P8 Million, for temperate damages.
The said amount is reasonable under the circumstances.86[89]
Exemplary damages can be awarded herein, since temperate
damages are available. Public officers who violate the Constitution they
are sworn to uphold embody a poison of wickedness that may not run
through the body politic.87[90] Respondents, by purposely denying the
commercial character of the property in order to deny petitioners the
exercise of their constitutional rights and their business, manifested bad
faith in a wanton, fraudulent, oppressive and malevolent manner.88[91] The
amount of exemplary damages need not be proved where it is shown that
plaintiff is entitled to temperate damages, 89[92] and the sought for amount of
P1 Million is more than appropriate. We likewise deem the prayer for
P1 Million in attorneys fees as suitable under the circumstances.
WHEREFORE, the petitions are GRANTED. The assailed
decisions of the Court of Appeals and the Regional Trial Court of Cauayan
City, Branch 24, are hereby reversed and set aside.
Suspension for three (3) months of TV
Host, as well as his own TV Program held
not prior restraint.

BRO. ELISEO SORIANO VS. MOVIE AND TELEVISION

REVIEW AND CLASSIFICATION BOARD, G.R. NO. 164785,
APRIL 29, 2009
VELASCO, JR., J.:

85
[88]

According to an article posted on the official website of Bombo Radyo, DZNC accordingly resumed
broadcast on 8 February 2006. See http://www.bomboradyo.com/archive/ new/stationprofile
/bombocauayan/index.htm (last visited, 6 March 2009)
86
[89]

See CIVIL CODE, Art. 2225.

87
[90]

[Exemplary damages] are an antidote so that the poison of wickedness may not run through the body
politic. Octot v. Ybaez, etc., et al., 197 Phil. 76, 82 (1982).
88
[91]

[The award of exemplary damages] would be allowed only if the guilty party acted in a wanton,
fraudulent, reckless, oppressive or malevolent manner. Octot v. Ybaez, supra note 87, at 85; citing Ong Yiu v.
CA, 91 SCRA 223.
89
[92]

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

198
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the
program Ang Dating Daan, aired on UNTV 37, made the following
remarks:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung
putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael
ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan.
Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang
kasinungalingan ng mga demonyong ito.
Two days after, before the MTRCB, separate but almost identical
affidavit-complaints were lodged by Jessie L. Galapon and seven other
private respondents, all members of the Iglesia ni Cristo (INC), against
petitioner in connection with the above broadcast. Respondent Michael M.
Sandoval, who felt directly alluded to in petitioners remark, was then a
minister of INC and a regular host of the TV program Ang Tamang
Daan.90[3] Forthwith, the MTRCB sent petitioner a notice of the hearing
on August 16, 2004 in relation to the alleged use of some cuss words in the
August 10, 2004 episode of Ang Dating Daan.91[4]
After a preliminary conference in which petitioner appeared, the
MTRCB, by Order of August 16, 2004, preventively suspended the
showing of Ang Dating Daan program for 20 days, in accordance with
Section 3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB,
in relation to Sec. 3, Chapter XIII of the 2004 Implementing Rules and
Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules
of Procedure.92[5] The same order also set the case for preliminary
investigation.
The following day, petitioner sought reconsideration of the
preventive suspension order, praying that Chairperson Consoliza P.
Laguardia and two other members of the adjudication board recuse
themselves from hearing the case.93[6] Two days after, however, petitioner
sought to withdraw94[7] his motion for reconsideration, followed by the
filing with this Court of a petition for certiorari and prohibition, 95[8]
docketed as G.R. No. 164785, to nullify the preventive suspension order
thus issued.
On September 27, 2004, in Adm. Case No. 01-04, the MTRCB
issued a decision, disposing as follows:

90

[3]

91

[4]

92
93
94
95

Id. at 924, Private Respondents Memorandum.

Id. at 110.
[5]
Id. at 112-113, Rules of Procedure in the Conduct of Hearing for Violations of PD 1986 and the IRR.
[6]
Id. at 141-151.
[7]
Id. at 152-154.
[8]
Id. at 166-252.

199
WHEREFORE, in view of all the foregoing, a Decision is hereby
rendered, finding respondent Soriano liable for his utterances and thereby
imposing on him a penalty of three (3) months suspension from his
program, Ang Dating Daan.
SO ORDERED.96[9]
Petitioner then filed this petition for certiorari and prohibition with
prayer for injunctive relief, docketed as G.R. No. 165636.
In G.R. No. 164785, petitioner raises the following issues:
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY
RESPONDENT [MTRCB] DATED 16 AUGUST 2004 AGAINST THE
TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL AND
VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT
PROVIDES FOR THE ISSUANCE OF PREVENTIVE SUSPENSION
ORDERS;
(B)BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
(C)FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE
LAW;
(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND
EXPRESSION.97[10]
In G.R. No. 165636, petitioner relies on the following grounds:
SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL
AND ENACTED WITHOUT OR IN EXCESS OF JURISDICTION x x x
CONSIDERING THAT:
I
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER,
UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE
OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT
PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT
CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING
RULES AND REGULATIONS, RULES OF PROCEDURE, AND
OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E.
DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19
OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS
APPLIED IN THE CASE AT BENCH;
II
96

[9]

97

[10]

Id. at 378.
Id. at 182.

200

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER,

UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE
OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER
THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE,
AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E.,
DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19
OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS
APPLIED IN THE CASE AT BENCH; AND
III
[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT
PROVIDE FOR A SUFFICIENT STANDARD FOR ITS
IMPLEMENTATION THEREBY RESULTING IN AN UNDUE
DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT
DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF
ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT
THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND
ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT
BENCH98[11]
G.R. No. 164785
We shall first dispose of the issues in G.R. No. 164785, regarding
the assailed order of preventive suspension, although its implementability
had already been overtaken and veritably been rendered moot by the
equally assailed September 27, 2004 decision.
It is petitioners threshold posture that the preventive suspension
imposed against him and the relevant IRR provision authorizing it are
invalid inasmuch as PD 1986 does not expressly authorize the MTRCB to
issue preventive suspension.
Petitioners contention is untenable.
Administrative agencies have powers and functions which may be
administrative, investigatory, regulatory, quasi-legislative, or quasijudicial, or a mix of the five, as may be conferred by the Constitution or
by statute.99[12] They have in fine only such powers or authority as are
granted or delegated, expressly or impliedly, by law.100[13] And in
determining whether an agency has certain powers, the inquiry should be

98

[11]

99

[12]

100

Id. at 46.
Azarcon v. Sandiganbayan, G.R. No. 116033, February 26, 1997, 268 SCRA 747.
[13]
Pimentel v. COMELEC, Nos. L-53581-83, December 19, 1980, 101 SCRA 769.

201
from the law itself. But once ascertained as existing, the authority given
should be liberally construed.101[14]
A perusal of the MTRCBs basic mandate under PD 1986 reveals
the possession by the agency of the authority, albeit impliedly, to issue the
challenged order of preventive suspension. And this authority stems
naturally from, and is necessary for the exercise of, its power of regulation
and supervision.
Sec. 3 of PD 1986 pertinently provides the following:
Section
3.
Powers
and
Functions.The
have the following functions, powers and duties:

BOARD

shall

xxxx
c) To approve or disapprove, delete objectionable portions from and/or
prohibit the x x x production, x x x exhibition and/or television broadcast
of the motion pictures, television programs and publicity materials subject
of the preceding paragraph, which, in the judgment of the board applying
contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs, injurious to
the prestige of the Republic of the Philippines or its people, or with a
dangerous tendency to encourage the commission of violence or of wrong
or crime such as but not limited to:
xxxx
vi) Those which are libelous or defamatory to the good name and
reputation of any person, whether living or dead;
xxxx
(d)
To supervise, regulate, and grant, deny or cancel, permits for the x
x x production, copying, distribution, sale, lease, exhibition, and/or
television broadcast of all motion pictures, television programs and
publicity materials, to the end that no such pictures, programs and
materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x produced, copied,
reproduced, distributed, sold, leased, exhibited and/or broadcast by
television;
xxxx
k) To exercise such powers and functions as may be necessary or
incidental to the attainment of the purposes and objectives of this Act x x
x. (Emphasis added.)
101

[14]

Agpalo, ADMINISTRATIVE LAW (2005); citing Matienzon v. Abellera, G.R. No. 77632, June 8,
1988, 162 SCRA 1.

202

The issuance of a preventive suspension comes well within the

scope of the MTRCBs authority and functions expressly set forth in PD
1986, more particularly under its Sec. 3(d), as quoted above, which
empowers the MTRCB to supervise, regulate, and grant, deny or cancel,
permits for the x x x exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end that no
such pictures, programs and materials as are determined by the BOARD to
be objectionable in accordance with paragraph (c) hereof shall be x x x
exhibited and/or broadcast by television.
Surely, the power to issue preventive suspension forms part of the
MTRCBs express regulatory and supervisory statutory mandate and its
investigatory and disciplinary authority subsumed in or implied from such
mandate. Any other construal would render its power to regulate,
supervise, or discipline illusory.
Preventive suspension, it ought to be noted, is not a penalty by
itself, being merely a preliminary step in an administrative investigation. 102
[15]
And the power to discipline and impose penalties, if granted, carries
with it the power to investigate administrative complaints and, during such
investigation, to preventively suspend the person subject of the
complaint.103[16]
To reiterate, preventive suspension authority of the MTRCB
springs from its powers conferred under PD 1986. The MTRCB did not, as
petitioner insinuates, empower itself to impose preventive suspension
through the medium of the IRR of PD 1986. It is true that the matter of
imposing preventive suspension is embodied only in the IRR of PD 1986.
Sec. 3, Chapter XIII of the IRR provides:
Sec. 3. PREVENTION SUSPENSION ORDER.Any time
during the pendency of the case, and in order to prevent or stop further
violations or for the interest and welfare of the public, the Chairman of the
Board may issue a Preventive Suspension Order mandating the preventive
x x x suspension of the permit/permits involved, and/or closure of the x x
x television network, cable TV station x x x provided that the
temporary/preventive order thus issued shall have a life of not more than
twenty (20) days from the date of issuance.
But the mere absence of a provision on preventive suspension in
PD 1986, without more, would not work to deprive the MTRCB a basic
disciplinary tool, such as preventive suspension. Recall that the MTRCB is
expressly empowered by statute to regulate and supervise television
programs to obviate the exhibition or broadcast of, among others, indecent
or immoral materials and to impose sanctions for violations and,
102

[15]

103

[16]

Lastimoso v. Vasquez, G.R. No. 116801, April 6, 1995, 243 SCRA 497.
Alonzo v. Capulong, G.R. No. 110590, May 10, 1995, 244 SCRA 80; Beja v. Court of Appeals, G.R.
No. 97149, March 31, 1992, 207 SCRA 689.

203
corollarily, to prevent further violations as it investigates. Contrary to
petitioners assertion, the aforequoted Sec. 3 of the IRR neither amended
PD 1986 nor extended the effect of the law. Neither did the MTRCB, by
imposing the assailed preventive suspension, outrun its authority under the
law. Far from it. The preventive suspension was actually done in
furtherance of the law, imposed pursuant, to repeat, to the MTRCBs duty
of regulating or supervising television programs, pending a determination
of whether or not there has actually been a violation. In the final analysis,
Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which
PD 1986 bestowed, albeit impliedly, on MTRCB.
Sec. 3(c) and (d) of PD 1986 finds application to the present case,
sufficient to authorize the MTRCBs assailed action. Petitioners
restrictive reading of PD 1986, limiting the MTRCB to functions within
the literal confines of the law, would give the agency little leeway to
operate, stifling and rendering it inutile, when Sec. 3(k) of PD 1986
clearly intends to grant the MTRCB a wide room for flexibility in its
operation. Sec. 3(k), we reiterate, provides, To exercise such powers and
functions as may be necessary or incidental to the attainment of the
purposes and objectives of this Act x x x. Indeed, the power to impose
preventive suspension is one of the implied powers of MTRCB. As
distinguished from express powers, implied powers are those that can be
inferred or are implicit in the wordings or conferred by necessary or fair
implication of the enabling act.104[17] As we held in Angara v. Electoral
Commission, when a general grant of power is conferred or a duty
enjoined, every particular power necessary for the exercise of one or the
performance of the other is also conferred by necessary implication. 105[18]
Clearly, the power to impose preventive suspension pending investigation
is one of the implied or inherent powers of MTRCB.
We cannot agree with petitioners assertion that the aforequoted
IRR provision on preventive suspension is applicable only to motion
pictures and publicity materials. The scope of the MTRCBs authority
extends beyond motion pictures. What the acronym MTRCB stands for
would suggest as much. And while the law makes specific reference to the
closure of a television network, the suspension of a television program is a
far less punitive measure that can be undertaken, with the purpose of
stopping further violations of PD 1986. Again, the MTRCB would
regretfully be rendered ineffective should it be subject to the restrictions
petitioner envisages.
Just as untenable is petitioners argument on the nullity of the
preventive suspension order on the ground of lack of hearing. As it were,
the MTRCB handed out the assailed order after petitioner, in response to a
written notice, appeared before that Board for a hearing on private
104

[17]
Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235, 295-296;
citing Azarcon, supra note 12, at 761; Radio Communications of the Philippines, Inc. v. Santiago, Nos. L-29236
& 29247, August 21, 1974, 58 SCRA 493, 497.
105
[18]
63 Phil. 139, 177 (1936).

204
respondents complaint. No less than petitioner admitted that the order was
issued after the adjournment of the hearing,106[19] proving that he had
already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the
IRR of PD 1986, preventive suspension shall issue [a]ny time during the
pendency of the case. In this particular case, it was done after MTRCB
duly apprised petitioner of his having possibly violated PD 1986107[20] and
of administrative complaints that had been filed against him for such
violation.108[21]
At any event, that preventive suspension can validly be meted out
even without a hearing.109[22]
Petitioner next faults the MTRCB for denying him his right to the
equal protection of the law, arguing that, owing to the preventive
suspension order, he was unable to answer the criticisms coming from the
INC ministers.
Petitioners position does not persuade. The equal protection clause
demands that all persons subject to legislation should be treated alike,
under like circumstances and conditions both in the privileges conferred
and liabilities imposed.110[23] It guards against undue favor and individual
privilege as well as hostile discrimination.111[24] Surely, petitioner cannot,
under the premises, place himself in the same shoes as the INC ministers,
who, for one, are not facing administrative complaints before the MTRCB.
For another, he offers no proof that the said ministers, in their TV
programs, use language similar to that which he used in his own,
necessitating the MTRCBs disciplinary action. If the immediate result of
the preventive suspension order is that petitioner remains temporarily
gagged and is unable to answer his critics, this does not become a
deprivation of the equal protection guarantee. The Court need not belabor
the fact that the circumstances of petitioner, as host of Ang Dating Daan,
on one hand, and the INC ministers, as hosts of Ang Tamang Daan, on the
other, are, within the purview of this case, simply too different to even
consider whether or not there is a prima facie indication of oppressive
inequality.
Petitioner next injects the notion of religious freedom, submitting
that what he uttered was religious speech, adding that words like putang
babae were said in exercise of his religious freedom.
The argument has no merit.

106

[19]

107

[20]

Rollo (G.R. No. 164785), p. 12.

Id. at 94.
108
[21]
Id. at 95.
109
[22]
Beja, supra note 16; Espiritu v. Melgar, G.R. No. 100874, February 13, 1992, 206 SCRA 256.
110
[23]
1 De Leon, PHILIPPINE CONSTITUTIONAL LAW 274 (2003).
111
[24]
Tiu v. Guingona, G.R. No. 127410, January 20, 1999, 301 SCRA 278; citing Ichong v. Hernandez,
101 Phil. 1155 (1957) and other cases.

205
The Court is at a loss to understand how petitioners utterances in
question can come within the pale of Sec. 5, Article III of the 1987
Constitution on religious freedom. The section reads as follows:
No law shall be made respecting the establishment of a religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
There is nothing in petitioners statements subject of the
complaints expressing any particular religious belief, nothing furthering
his avowed evangelical mission. The fact that he came out with his
statements in a televised bible exposition program does not automatically
accord them the character of a religious discourse. Plain and simple insults
directed at another person cannot be elevated to the status of religious
speech.
G.R. No. 165636
Petitioner urges the striking down of the decision suspending him
from hosting Ang Dating Daan for three months on the main ground that
the decision violates, apart from his religious freedom, his freedom of
speech and expression guaranteed under Sec. 4, Art. III of the
Constitution, which reads:
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievance.
He would also have the Court declare PD 1986, its Sec. 3(c) in
particular, unconstitutional for reasons articulated in this petition.
It is settled that expressions by means of newspapers, radio,
television, and motion pictures come within the broad protection of the
free speech and expression clause.112[25] Each method though, because of
its dissimilar presence in the lives of people and accessibility to children,
tends to present its own problems in the area of free speech protection,
with broadcast media, of all forms of communication, enjoying a lesser
degree of protection.113[26] Just as settled is the rule that restrictions, be it in
the form of prior restraint, e.g., judicial injunction against publication or
threat of cancellation of license/franchise, or subsequent liability, whether
in libel and damage suits, prosecution for sedition, or contempt
proceedings, are anathema to the freedom of expression. Prior restraint
112[25]
US v. Paramount Pictures, 334 U.S. 131; Eastern Broadcasting Corporation v. Dans, Jr., No. L59329, July 19, 1985, 137 SCRA 628.
113
[26]
Eastern Broadcasting Corporation v. Dans, Jr., supra note 25; citing FCC v. Pacifica Foundation,
438 U.S. 726; Gonzales v. Kalaw Katigbak, No. L-69500, July 22, 1985, 137 SCRA 717.

206
means official government restrictions on the press or other forms of
expression in advance of actual publication or dissemination.114[27] The
freedom of expression, as with the other freedoms encased in the Bill of
Rights, is, however, not absolute. It may be regulated to some extent to
serve important public interests, some forms of speech not being
protected. As has been held, the limits of the freedom of expression are
reached when the expression touches upon matters of essentially private
concern.115[28] In the oft-quoted expression of Justice Holmes, the
constitutional guarantee obviously was not intended to give immunity for
every possible use of language.116[29] From Lucas v. Royo comes this line:
[T]he freedom to express ones sentiments and belief does not grant one
the license to vilify in public the honor and integrity of another. Any
sentiments must be expressed within the proper forum and with proper
regard for the rights of others.117[30]
Indeed, as noted in Chaplinsky v. State of New Hampshire,118[31]
there are certain well-defined and narrowly limited classes of speech that
are harmful, the prevention and punishment of which has never been
thought to raise any Constitutional problems. In net effect, some forms of
speech are not protected by the Constitution, meaning that restrictions on
unprotected speech may be decreed without running afoul of the freedom
of speech clause.119[32] A speech would fall under the unprotected type if
the utterances involved are no essential part of any exposition of ideas,
and are of such slight social value as a step of truth that any benefit that
may be derived from them is clearly outweighed by the social interest in
order and morality.120[33] Being of little or no value, there is, in dealing
with or regulating them, no imperative call for the application of the clear
and present danger rule or the balancing-of-interest test, they being
essentially modes of weighing competing values,121[34] or, with like effect,
determining which of the clashing interests should be advanced.
Petitioner asserts that his utterance in question is a protected form
of speech.
The Court rules otherwise. It has been established in this
jurisdiction that unprotected speech or low-value expression refers to
libelous statements, obscenity or pornography, false or misleading
advertisement, insulting or fighting words, i.e., those which by their
very utterance inflict injury or tend to incite an immediate breach of peace
and expression endangering national security.
114

[27]

J.G. Bernas, S.J., THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A

COMMENTARY 205 (1996).
115
[28]
Lagunsad v. Soto vda. De Gonzales, No. L-32066, August 6, 1979, 92 SCRA 476.
116
[29]
Trohwerk v. United States, 249 U.S. 204 (1919); cited in Bernas, supra at 218.
117
[30]
G.R. No. 136185, October 30, 2000, 344 SCRA 481, 490.
118[31]
315 U.S. 568 (1942).
119[32]
Agpalo, PHILIPPINE CONSTITUTIONAL LAW 358 (2006).
120[33]
Chaplinsky, supra note 31; cited in Bernas, supra note 27, at 248.
121[34]
Bernas, supra note 27, at 248.

207
The Court finds that petitioners statement can be treated as
obscene, at least with respect to the average child. Hence, it is, in that
context, unprotected speech. In Fernando v. Court of Appeals, the Court
expressed difficulty in formulating a definition of obscenity that would
apply to all cases, but nonetheless stated the ensuing observations on the
matter:
There is no perfect definition of obscenity but the latest word
is that of Miller v. California which established basic guidelines, to wit:
(a) whether to the average person, applying contemporary standards would
find the work, taken as a whole, appeals to the prurient interest; (b)
whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and (c) whether
the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value. But, it would be a serious misreading of Miller to
conclude that the trier of facts has the unbridled discretion in determining
what is patently offensive. x x x What remains clear is that obscenity is
an issue proper for judicial determination and should be treated on a case
to case basis and on the judges sound discretion.122[35]
Following the contextual lessons of the cited case of Miller v.
California,123[36] a patently offensive utterance would come within the pale
of the term obscenity should it appeal to the prurient interest of an average
listener applying contemporary standards.
A cursory examination of the utterances complained of and the
circumstances of the case reveal that to an average adult, the utterances
Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang
babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang
gumagana ang itaas, o di ba! may not constitute obscene but merely
indecent utterances. They can be viewed as figures of speech or merely a
play on words. In the context they were used, they may not appeal to the
prurient interests of an adult. The problem with the challenged statements
is that they were uttered in a TV program that is rated G or for general
viewership, and in a time slot that would likely reach even the eyes and
ears of children.
While adults may have understood that the terms thus used were
not to be taken literally, children could hardly be expected to have the
same discernment. Without parental guidance, the unbridled use of such
language as that of petitioner in a television broadcast could corrupt
impressionable young minds. The term putang babae means a female
prostitute, a term wholly inappropriate for children, who could look it up
in a dictionary and just get the literal meaning, missing the context within
which it was used. Petitioner further used the terms, ang gumagana lang
doon yung ibaba, making reference to the female sexual organ and how a
female prostitute uses it in her trade, then stating that Sandoval was worse
122

[35]

123

[36]

G.R. No. 159751, December 6, 2006, 510 SCRA 351, 360-361.

413 U.S. 15.

208
than that by using his mouth in a similar manner. Children could be
motivated by curiosity and ask the meaning of what petitioner said, also
without placing the phrase in context. They may be inquisitive as to why
Sandoval is different from a female prostitute and the reasons for the
dissimilarity. And upon learning the meanings of the words used, young
minds, without the guidance of an adult, may, from their end, view this
kind of indecent speech as obscene, if they take these words literally and
use them in their own speech or form their own ideas on the matter. In
this particular case, where children had the opportunity to hear petitioners
words, when speaking of the average person in the test for obscenity, we
are speaking of the average child, not the average adult. The average child
may not have the adults grasp of figures of speech, and may lack the
understanding that language may be colorful, and words may convey more
than the literal meaning. Undeniably the subject speech is very suggestive
of a female sexual organ and its function as such. In this sense, we find
petitioners utterances obscene and not entitled to protection under the
umbrella of freedom of speech.
Even if we concede that petitioners remarks are not obscene but
merely indecent speech, still the Court rules that petitioner cannot avail
himself of the constitutional protection of free speech. Said statements
were made in a medium easily accessible to children. With respect to the
young minds, said utterances are to be treated as unprotected speech.
No doubt what petitioner said constitutes indecent or offensive
utterances. But while a jurisprudential pattern involving certain offensive
utterances conveyed in different mediums has emerged, this case is
veritably one of first impression, it being the first time that indecent
speech communicated via television and the applicable norm for its
regulation are, in this jurisdiction, made the focal point. Federal
Communications Commission (FCC) v. Pacifica Foundation,124[37] a 1978
American landmark case cited in Eastern Broadcasting Corporation v.
Dans, Jr.125[38] and Chavez v. Gonzales,126[39] is a rich source of persuasive
lessons. Foremost of these relates to indecent speech without prurient
appeal component coming under the category of protected speech
depending on the context within which it was made, irresistibly suggesting
that, within a particular context, such indecent speech may validly be
categorized as unprotected, ergo, susceptible to restriction.
In FCC, seven of what were considered filthy words127[40] earlier
recorded in a monologue by a satiric humorist later aired in the afternoon
over a radio station owned by Pacifica Foundation. Upon the complaint of
a man who heard the pre-recorded monologue while driving with his son,
FCC declared the language used as patently offensive and indecent
under a prohibiting law, though not necessarily obscene. FCC added,
124

[37]

125

[38]

126
127

438 U.S. 726.

Supra note 25.
[39]
G.R. No. 168338, February 15, 2008, 545 SCRA 441.
[40]
Shit, piss, fuck, tits, etc.

209
however, that its declaratory order was issued in a special factual
context, referring, in gist, to an afternoon radio broadcast when children
were undoubtedly in the audience. Acting on the question of whether the
FCC could regulate the subject utterance, the US Supreme Court ruled in
the affirmative, owing to two special features of the broadcast medium, to
wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely
accessible to children. The US Court, however, hastened to add that the
monologue would be protected speech in other contexts, albeit it did not
expound and identify a compelling state interest in putting FCCs contentbased regulatory action under scrutiny.
The Court in Chavez128[41] elucidated on the distinction between
regulation or restriction of protected speech that is content-based and that
which is content-neutral. A content-based restraint is aimed at the contents
or idea of the expression, whereas a content-neutral restraint intends to
regulate the time, place, and manner of the expression under well-defined
standards tailored to serve a compelling state interest, without restraint on
the message of the expression. Courts subject content-based restraint to
strict scrutiny.
With the view we take of the case, the suspension MTRCB
imposed under the premises was, in one perspective, permissible
restriction. We make this disposition against the backdrop of the following
interplaying factors: First, the indecent speech was made via television, a
pervasive medium that, to borrow from Gonzales v. Kalaw Katigbak,129[42]
easily reaches every home where there is a set [and where] [c]hildren will
likely be among the avid viewers of the programs therein shown; second,
the broadcast was aired at the time of the day when there was a reasonable
risk that children might be in the audience; and third, petitioner uttered
his speech on a G or for general patronage rated program. Under Sec.
2(A) of Chapter IV of the IRR of the MTRCB, a show for general
patronage is [s]uitable for all ages, meaning that the material for
television x x x in the judgment of the BOARD, does not contain anything
unsuitable for children and minors, and may be viewed without adult
guidance or supervision. The words petitioner used were, by any
civilized norm, clearly not suitable for children. Where a language is
categorized as indecent, as in petitioners utterances on a generalpatronage rated TV program, it may be readily proscribed as unprotected
speech.
A view has been advanced that unprotected speech refers only to
pornography,130[43] false or misleading advertisement,131[44] advocacy of
imminent lawless action, and expression endangering national security.
But this list is not, as some members of the Court would submit, exclusive
128

[41]

129

[42]

Supra note 39.

Supra note 26.
130[43]
Gonzales v. Kalaw Katigbak, supra.
131[44]
Pharmaceutical and Health Care Association of the Philippines v. Health Secretary Francisco T.
Duque III, G.R. No. 173034, October 9, 2007, 535 SCRA 265.

210
or carved in stone. Without going into specifics, it may be stated without
fear of contradiction that US decisional law goes beyond the aforesaid
general exceptions. As the Court has been impelled to recognize
exceptions to the rule against censorship in the past, this particular case
constitutes yet another exception, another instance of unprotected speech,
created by the necessity of protecting the welfare of our children. As
unprotected speech, petitioners utterances can be subjected to restraint or
regulation.
Despite the settled ruling in FCC which has remained undisturbed
since 1978, petitioner asserts that his utterances must present a clear and
present danger of bringing about a substantive evil the State has a right
and duty to prevent and such danger must be grave and imminent.132[45]
Petitioners invocation of the clear and present danger doctrine,
arguably the most permissive of speech tests, would not avail him any
relief, for the application of said test is uncalled for under the premises.
The doctrine, first formulated by Justice Holmes, accords protection for
utterances so that the printed or spoken words may not be subject to prior
restraint or subsequent punishment unless its expression creates a clear
and present danger of bringing about a substantial evil which the
government has the power to prohibit.133[46] Under the doctrine, freedom
of speech and of press is susceptible of restriction when and only when
necessary to prevent grave and immediate danger to interests which the
government may lawfully protect. As it were, said doctrine evolved in the
context of prosecutions for rebellion and other crimes involving the
overthrow of government.134[47] It was originally designed to determine the
latitude which should be given to speech that espouses anti-government
action, or to have serious and substantial deleterious consequences on the
security and public order of the community.135[48] The clear and present
danger rule has been applied to this jurisdiction. 136[49] As a standard of
limitation on free speech and press, however, the clear and present danger
test is not a magic incantation that wipes out all problems and does away
with analysis and judgment in the testing of the legitimacy of claims to
free speech and which compels a court to release a defendant from liability
the moment the doctrine is invoked, absent proof of imminent catastrophic
disaster.137[50] As we observed in Eastern Broadcasting Corporation, the
clear and present danger test does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums.138[51]
To be sure, the clear and present danger doctrine is not the only test
which has been applied by the courts. Generally, said doctrine is applied
132

[45]

Bayan v. Ermita, G.R. No. 169838, April 25, 2006, 488 SCRA 226.
16A Am Jur. 2d Constitutional Law Sec. 493; Schenck v. United States, 249 U.S. 47.
134[47]
Bernas, supra note 27, at 219-220.
135[48]
Gonzales v. COMELEC, No. L-27833, April 18, 1969, 27 SCRA 835.
136[49]
ABS-CBN Broadcasting Corp. v. COMELEC, G.R. No. 133486, January 28, 2000, 323 SCRA 811;
Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712.
137[50]
Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707 & 80578, February 1, 1989, 170 SCRA 1.
138[51]
Supra note 25, at 635.
133[46]

211
to cases involving the overthrow of the government and even other evils
which do not clearly undermine national security. Since not all evils can
be measured in terms of proximity and degree the Court, however, in
several casesAyer Productions v. Capulong139[52] and Gonzales v.
COMELEC,140[53] applied the balancing of interests test. Former Chief
Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his
Separate Opinion that where the legislation under constitutional attack
interferes with the freedom of speech and assembly in a more generalized
way and where the effect of the speech and assembly in terms of the
probability of realization of a specific danger is not susceptible even of
impressionistic calculation,141[54] then the balancing of interests test can
be applied.
The Court explained also in Gonzales v. COMELEC the balancing
of interests test:
When particular conduct is regulated in the interest of public order,
and the regulation results in an indirect, conditional, partial abridgment of
speech, the duty of the courts is to determine which of the two conflicting
interests demands the greater protection under the particular circumstances
presented. x x x We must, therefore, undertake the delicate and difficult
task x x x to weigh the circumstances and to appraise the substantiality of
the reasons advanced in support of the regulation of the free enjoyment of
rights x x x.
In enunciating standard premised on a judicial balancing of the
conflicting social values and individual interests competing for
ascendancy in legislation which restricts expression, the court in Douds
laid the basis for what has been called the balancing-of-interests test
which has found application in more recent decisions of the U.S. Supreme
Court. Briefly stated, the balancing test requires a court to take
conscious and detailed consideration of the interplay of interests
observable in a given situation or type of situation.
xxx
Although the urgency of the public interest sought to be secured by
Congressional power restricting the individuals freedom, and the social
importance and value of the freedom so restricted, are to be judged in the
concrete, not on the basis of abstractions, a wide range of factors are
necessarily relevant in ascertaining the point or line of equilibrium.
Among these are (a) the social value and importance of the specific aspect
of the particular freedom restricted by the legislation; (b) the specific
thrust of the restriction, i.e., whether the restriction is direct or indirect,
whether or not the persons affected are few; (c) the value and importance
of the public interest sought to be secured by the legislationthe
139[52]
140
141

No. L-82380, April 29, 1988, 160 SCRA 861.

Supra note 48.
[54]
Supra at 898.
[53]

212
reference here is to the nature and gravity of the evil which Congress
seeks to prevent; (d) whether the specific restriction decreed by Congress
is reasonably appropriate and necessary for the protection of such public
interest; and (e) whether the necessary safeguarding of the public interest
involved may be achieved by some other measure less restrictive of the
protected freedom.142[55]
This balancing of interest test, to borrow from Professor Kauper,143
[56]
rests on the theory that it is the courts function in a case before it when
it finds public interests served by legislation, on the one hand, and the free
expression clause affected by it, on the other, to balance one against the
other and arrive at a judgment where the greater weight shall be placed.
If, on balance, it appears that the public interest served by restrictive
legislation is of such nature that it outweighs the abridgment of freedom,
then the court will find the legislation valid. In short, the balance-ofinterests theory rests on the basis that constitutional freedoms are not
absolute, not even those stated in the free speech and expression clause,
and that they may be abridged to some extent to serve appropriate and
important interests.144[57] To the mind of the Court, the balancing of
interest doctrine is the more appropriate test to follow.
In the case at bar, petitioner used indecent and obscene language
and a three (3)-month suspension was slapped on him for breach of
MTRCB rules. In this setting, the assertion by petitioner of his enjoyment
of his freedom of speech is ranged against the duty of the government to
protect and promote the development and welfare of the youth.
After a careful examination of the factual milieu and the arguments
raised by petitioner in support of his claim to free speech, the Court rules
that the governments interest to protect and promote the interests and
welfare of the children adequately buttresses the reasonable curtailment
and valid restraint on petitioners prayer to continue as program host of
Ang Dating Daan during the suspension period.
No doubt, one of the fundamental and most vital rights granted to
citizens of a State is the freedom of speech or expression, for without the
enjoyment of such right, a free, stable, effective, and progressive
democratic state would be difficult to attain. Arrayed against the freedom
of speech is the right of the youth to their moral, spiritual, intellectual, and
social being which the State is constitutionally tasked to promote and
protect. Moreover, the State is also mandated to recognize and support the
vital role of the youth in nation building as laid down in Sec. 13, Art. II of
the 1987 Constitution.

142[55]

Supra at 899-900.
Kauper, CIVIL LIBERTIES AND THE CONSTITUTION 113 (1966); cited in Gonzales v.
COMELEC, supra note 48; also cited in J.G. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF
THE PHILIPPINES: A COMMENTARY (2003).
144
[57]
Id.
143[56]

213
The Constitution has, therefore, imposed the sacred obligation and
responsibility on the State to provide protection to the youth against illegal
or improper activities which may prejudice their general well-being. The
Article on youth, approved on second reading by the Constitutional
Commission, explained that the State shall extend social protection to
minors against all forms of neglect, cruelty, exploitation, immorality, and
practices which may foster racial, religious or other forms of
discrimination.145[58]
Indisputably, the State has a compelling interest in extending social
protection to minors against all forms of neglect, exploitation, and
immorality which may pollute innocent minds. It has a compelling
interest in helping parents, through regulatory mechanisms, protect their
childrens minds from exposure to undesirable materials and corrupting
experiences. The Constitution, no less, in fact enjoins the State, as earlier
indicated, to promote and protect the physical, moral, spiritual,
intellectual, and social well-being of the youth to better prepare them
fulfill their role in the field of nation-building.146[59] In the same way, the
State is mandated to support parents in the rearing of the youth for civic
efficiency and the development of moral character.147[60]
Petitioners offensive and obscene language uttered in a television
broadcast, without doubt, was easily accessible to the children. His
statements could have exposed children to a language that is unacceptable
in everyday use. As such, the welfare of children and the States mandate
to protect and care for them, as parens patriae,148[61] constitute a substantial
and compelling government interest in regulating petitioners utterances in
TV broadcast as provided in PD 1986.
FCC explains the duty of the government to act as parens patriae
to protect the children who, because of age or interest capacity, are
susceptible of being corrupted or prejudiced by offensive language, thus:
[B]roadcasting is uniquely accessible to children, even those too
young to read. Although Cohens written message, [Fuck the Draft],
might have been incomprehensible to a first grader, Pacificas broadcast
could have enlarged a childs vocabulary in an instant. Other forms of
offensive expression may be withheld from the young without restricting
the expression at its source. Bookstores and motion picture theaters, for
example, may be prohibited from making indecent material available to
children. We held in Ginsberg v. New York that the governments interest
in the well-being of its youth and in supporting parents claim to
authority in their own household justified the regulation of otherwise
protected expression. The ease with which children may obtain access to

145

[58]

146

[59]

147
148

Bernas, supra note 27, at 81.

CONSTITUTION, Art. II, Sec. 13.
[60]
Id., id., Sec. 12.
[61]
Id.

214
broadcast material, coupled with the concerns recognized in Ginsberg,
amply justify special treatment of indecent broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty
of the State to attend to the welfare of the young:
x x x It is the consensus of this Court that where television is
concerned, a less liberal approach calls for observance. This is so because
unlike motion pictures where the patrons have to pay their way, television
reaches every home where there is a set. Children then will likely will be
among the avid viewers of the programs therein shown. As was observed
by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern
of the law to deal with the sexual fantasies of the adult population. It
cannot be denied though that the State as parens patriae is called upon to
manifest an attitude of caring for the welfare of the young.149[62]
The compelling need to protect the young impels us to sustain the
regulatory action MTRCB took in the narrow confines of the case. To
reiterate, FCC justified the restraint on the TV broadcast grounded on the
following considerations: (1) the use of television with its unique
accessibility to children, as a medium of broadcast of a patently offensive
speech; (2) the time of broadcast; and (3) the G rating of the Ang Dating
Daan program. And in agreeing with MTRCB, the court takes stock of
and cites with approval the following excerpts from FCC:
It is appropriate, in conclusion, to emphasize the narrowness of our
holding. This case does not involve a two-way radio conversation between
a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We
have not decided that an occasional expletive in either setting would
justify any sanction. x x x The [FFCs] decision rested entirely on a
nuisance rationale under which context is all important. The concept
requires consideration of a host of variables. The time of day was
emphasized by the [FFC]. The content of the program in which the
language is used will affect the composition of the audience x x x. As Mr.
Justice Sutherland wrote a nuisance may be merely a right thing in the
wrong place, like a pig in the parlor instead of the barnyard. We simply
hold that when the [FCC] finds that a pig has entered the parlor, the
exercise of its regulatory power does not depend on proof that the pig is
obscene. (Citation omitted.)
There can be no quibbling that the remarks in question petitioner
uttered on prime-time television are blatantly indecent if not outright
obscene. It is the kind of speech that PD 1986 proscribes necessitating the
exercise by MTRCB of statutory disciplinary powers. It is the kind of
speech that the State has the inherent prerogative, nay duty, to regulate and
prevent should such action served and further compelling state interests.
One who utters indecent, insulting, or offensive words on television when
unsuspecting children are in the audience is, in the graphic language of
149

[62]

Supra note 26, at 729.

215
FCC, a pig in the parlor. Public interest would be served if the pig is
reasonably restrained or even removed from the parlor.
Ergo, petitioners offensive and indecent language can be
subjected to prior restraint.
Petitioner theorizes that the three (3)-month suspension is either
prior restraint or subsequent punishment that, however, includes prior
restraint, albeit indirectly.
After a review of the facts, the Court finds that what MTRCB
imposed on petitioner is an administrative sanction or subsequent
punishment for his offensive and obscene language in Ang Dating
Daan.
To clarify, statutes imposing prior restraints on speech are
generally illegal and presumed unconstitutional breaches of the freedom of
speech. The exceptions to prior restraint are movies, television, and radio
broadcast censorship in view of its access to numerous people, including
the young who must be insulated from the prejudicial effects of
unprotected speech. PD 1986 was passed creating the Board of Review
for Motion Pictures and Television (now MTRCB) and which requires
prior permit or license before showing a motion picture or broadcasting a
TV program. The Board can classify movies and television programs and
can cancel permits for exhibition of films or television broadcast.
The power of MTRCB to regulate and even impose some prior
restraint on radio and television shows, even religious programs, was
upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking through Chief
Justice Reynato S. Puno, the Court wrote:
We thus reject petitioners postulate that its religious program is
per se beyond review by the respondent Board. Its public broadcast on TV
of its religious program brings it out of the bosom of internal belief.
Television is a medium that reaches even the eyes and ears of children.
The Court iterates the rule that the exercise of religious freedom can be
regulated by the State when it will bring about the clear and present
danger of some substantive evil which the State is duty bound to prevent,
i.e., serious detriment to the more overriding interest of public health,
public morals, or public welfare. x x x
xxx
While the thesis has a lot to commend itself, we are not ready to
hold that [PD 1986] is unconstitutional for Congress to grant an
administrative body quasi-judicial power to preview and classify TV
programs and enforce its decision subject to review by our courts. As far
back as 1921, we upheld this setup in Sotto vs. Ruiz, viz:

216
The use of the mails by private persons is in the nature of a
privilege which can be regulated in order to avoid its abuse. Persons
possess no absolute right to put into the mail anything they please,
regardless of its character.150[63]
Bernas adds:
Under the decree a movie classification board is made the arbiter
of what movies and television programs or parts of either are fit for public
consumption. It decides what movies are immoral, indecent, contrary to
law and/or good customs, injurious to the prestige of the Republic of the
Philippines or its people, and what tend to incite subversion,
insurrection, rebellion or sedition, or tend to undermine the faith and
confidence of the people in their government and/or duly constituted
authorities, etc. Moreover, its decisions are executory unless stopped by
a court.151[64]
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,152[65]
it was held that the power of review and prior approval of MTRCB
extends to all television programs and is valid despite the freedom of
speech guaranteed by the Constitution. Thus, all broadcast networks are
regulated by the MTRCB since they are required to get a permit before
they air their television programs. Consequently, their right to enjoy their
freedom of speech is subject to that requirement. As lucidly explained by
Justice Dante O. Tinga, government regulations through the MTRCB
became a necessary evil with the government taking the role of
assigning bandwidth to individual broadcasters. The stations explicitly
agreed to this regulatory scheme; otherwise, chaos would result in the
television broadcast industry as competing broadcasters will interfere or
co-opt each others signals. In this scheme, station owners and
broadcasters in effect waived their right to the full enjoyment of their right
to freedom of speech in radio and television programs and impliedly
agreed that said right may be subject to prior restraintdenial of permit or
subsequent punishment, like suspension or cancellation of permit, among
others.
The three (3) months suspension in this case is not a prior
restraint on the right of petitioner to continue with the broadcast of
Ang Dating Daan as a permit was already issued to him by MTRCB
for such broadcast. Rather, the suspension is in the form of
permissible administrative sanction or subsequent punishment for the
offensive and obscene remarks he uttered on the evening of August 10,
2004 in his television program, Ang Dating Daan. It is a sanction that
the MTRCB may validly impose under its charter without running afoul of
the free speech clause. And the imposition is separate and distinct from
the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986
150

[63]

151

[64]

152

G.R. No. 119673, July 26, 1996, 259 SCRA 529, 544, 552.
Supra note 56, at 235.
[65]
G.R. No. 155282, January 17, 2005, 448 SCRA 575.

217
and the remedies that may be availed of by the aggrieved private party
under the provisions on libel or tort, if applicable. As FCC teaches, the
imposition of sanctions on broadcasters who indulge in profane or
indecent broadcasting does not constitute forbidden censorship. Lest it be
overlooked, the sanction imposed is not per se for petitioners exercise of
his freedom of speech via television, but for the indecent contents of his
utterances in a G rated TV program.
More importantly, petitioner is deemed to have yielded his right to
his full enjoyment of his freedom of speech to regulation under PD 1986
and its IRR as television station owners, program producers, and hosts
have impliedly accepted the power of MTRCB to regulate the broadcast
industry.
Neither can petitioners virtual inability to speak in his program
during the period of suspension be plausibly treated as prior restraint on
future speech. For viewed in its proper perspective, the suspension is in
the nature of an intermediate penalty for uttering an unprotected form of
speech. It is definitely a lesser punishment than the permissible
cancellation of exhibition or broadcast permit or license. In fine, the
suspension meted was simply part of the duties of the MTRCB in the
enforcement and administration of the law which it is tasked to implement.
Viewed in its proper context, the suspension sought to penalize past
speech made on prime-time G rated TV program; it does not bar future
speech of petitioner in other television programs; it is a permissible
subsequent administrative sanction; it should not be confused with a prior
restraint on speech. While not on all fours, the Court, in MTRCB,153[66]
sustained the power of the MTRCB to penalize a broadcast company for
exhibiting/airing a pre-taped TV episode without Board authorization in
violation of Sec. 7 of PD 1986.
Any simplistic suggestion, however, that the MTRCB would be
crossing the limits of its authority were it to regulate and even restrain the
prime-time television broadcast of indecent or obscene speech in a G
rated program is not acceptable. As made clear in Eastern Broadcasting
Corporation, the freedom of television and radio broadcasting is
somewhat lesser in scope than the freedom accorded to newspaper and
print media. The MTRCB, as a regulatory agency, must have the
wherewithal to enforce its mandate, which would not be effective if its
punitive actions would be limited to mere fines. Television broadcasts
should be subject to some form of regulation, considering the ease with
which they can be accessed, and violations of the regulations must be met
with appropriate and proportional disciplinary action. The suspension of a
violating television program would be a sufficient punishment and serve
as a deterrent for those responsible. The prevention of the broadcast of
petitioners television program is justified, and does not constitute
prohibited prior restraint. It behooves the Court to respond to the needs of
the changing times, and craft jurisprudence to reflect these times.
153

[66]

Supra note 65.

218

Finally, petitioner argues that there has been undue delegation of

legislative power, as PD 1986 does not provide for the range of imposable
penalties that may be applied with respect to violations of the provisions
of the law.
The argument is without merit.
In Edu v. Ericta, the Court discussed the matter of undue
delegation of legislative power in the following wise:
It is a fundamental principle flowing from the doctrine of
separation of powers that Congress may not delegate its legislative power
to the two other branches of the government, subject to the exception that
local governments may over local affairs participate in its exercise. What
cannot be delegated is the authority under the Constitution to make laws
and to alter and repeal them; the test is the completeness of the statute in
all its term and provisions when it leaves the hands of the legislature. To
determine whether or not there is an undue delegation of legislative power,
the inquiry must be directed to the scope and definiteness of the measure
enacted. The legislature does not abdicate its functions when it describes
what job must be done, who is to do it, and what is the scope of his
authority. For a complex economy, that may indeed be the only way in
which the legislative process can go forward. A distinction has rightfully
been made between delegation of power to make laws which necessarily
involves a discretion as to what it shall be, which constitutionally may not
be done, and delegation of authority or discretion as to its execution to be
exercised under and in pursuance of the law, to which no valid objection
can be made. The Constitution is thus not to be regarded as denying the
legislature the necessary resources of flexibility and practicability.
To avoid the taint of unlawful delegation, there must be a standard,
which implies at the very least that the legislature itself determines matters
of principle and lays down fundamental policy. Otherwise, the charge of
complete abdication may be hard to repel. A standard thus defines
legislative policy, marks its limits, maps out its boundaries and specifies
the public agency to apply it. It indicates the circumstances under which
the legislative command is to be effected. It is the criterion by which
legislative purpose may be carried out. Thereafter, the executive or
administrative office designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations.154[67]
Based on the foregoing pronouncements and analyzing the law in
question, petitioners protestation about undue delegation of legislative
power for the sole reason that PD 1986 does not provide for a range of
penalties for violation of the law is untenable. His thesis is that
MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule
154

[67]

No. L-32096, October 24, 1970, 35 SCRA 481, 496-497.

219
of penalties for violation of the provisions of the decree, went beyond
the terms of the law.
Petitioners posture is flawed by the erroneous assumptions
holding it together, the first assumption being that PD 1986 does not
prescribe the imposition of, or authorize the MTRCB to impose, penalties
for violators of PD 1986. As earlier indicated, however, the MTRCB, by
express and direct conferment of power and functions, is charged with
supervising and regulating, granting, denying, or canceling permits for the
exhibition and/or television broadcast of all motion pictures, television
programs, and publicity materials to the end that no such objectionable
pictures, programs, and materials shall be exhibited and/or broadcast by
television. Complementing this provision is Sec. 3(k) of the decree
authorizing the MTRCB to exercise such powers and functions as may be
necessary or incidental to the attainment of the purpose and objectives of
[the law]. As earlier explained, the investiture of supervisory, regulatory,
and disciplinary power would surely be a meaningless grant if it did not
carry with it the power to penalize the supervised or the regulated as may
be proportionate to the offense committed, charged, and proved. As the
Court said in Chavez v. National Housing Authority:
x x x [W]hen a general grant of power is conferred or duty
enjoined, every particular power necessary for the exercise of the one or
the performance of the other is also conferred. x x x [W]hen the statute
does not specify the particular method to be followed or used by a
government agency in the exercise of the power vested in it by law, said
agency has the authority to adopt any reasonable method to carry out its
function.155[68]
Given the foregoing perspective, it stands to reason that the power
of the MTRCB to regulate and supervise the exhibition of TV programs
carries with it or necessarily implies the authority to take effective punitive
action for violation of the law sought to be enforced. And would it not be
logical too to say that the power to deny or cancel a permit for the
exhibition of a TV program or broadcast necessarily includes the lesser
power to suspend?
The MTRCB promulgated the IRR of PD 1986 in accordance with
Sec. 3(a) which, for reference, provides that agency with the power [to]
promulgate such rules and regulations as are necessary or proper for the
implementation of this Act, and the accomplishment of its purposes and
objectives x x x. And Chapter XIII, Sec. 1 of the IRR providing:
Section
1.
VIOLATIONS
AND
ADMINISTRATIVE
SANCTIONS.Without prejudice to the immediate filing of the
appropriate criminal action and the immediate seizure of the pertinent
articles pursuant to Section 13, any violation of PD 1986 and its
155

[68]

Supra note 17; citing Angara v. Electoral Commission, 63 Phil. 139 (1936); Provident Tree Farms,
Inc. v. Batario, Jr., G.R. No. 92285, March 28, 1994, 231 SCRA 463.

220
Implementing Rules and Regulations governing motion pictures,
television programs, and related promotional materials shall be
penalized with suspension or cancellation of permits and/or licenses
issued by the Board and/or with the imposition of fines and other
administrative penalty/penalties. The Board recognizes the existing Table
of Administrative Penalties attached without prejudice to the power of the
Board to amend it when the need arises. In the meantime the existing
revised Table of Administrative Penalties shall be enforced. (Emphasis
added.)
This is, in the final analysis, no more than a measure to specifically
implement the aforequoted provisions of Sec. 3(d) and (k). Contrary to
what petitioner implies, the IRR does not expand the mandate of the
MTRCB under the law or partake of the nature of an unauthorized
administrative legislation. The MTRCB cannot shirk its responsibility to
regulate the public airwaves and employ such means as it can as a
guardian of the public.
In Sec. 3(c), one can already find the permissible actions of the
MTRCB, along with the standards to be applied to determine whether
there have been statutory breaches. The MTRCB may evaluate motion
pictures, television programs, and publicity materials applying
contemporary Filipino cultural values as standard, and, from there,
determine whether these audio and video materials are objectionable for
being immoral, indecent, contrary to law and/or good customs, [etc.] x x
x and apply the sanctions it deems proper. The lawmaking body cannot
possibly provide for all the details in the enforcement of a particular
statute.156[69]
The grant of the rule-making power to administrative
agencies is a relaxation of the principle of separation of powers and is an
exception to the non-delegation of legislative powers.157[70] Administrative
regulations or subordinate legislation calculated to promote the public
interest are necessary because of the growing complexity of modern life,
the multiplication of the subjects of governmental regulations, and the
increased difficulty of administering the law.158[71] Allowing the MTRCB
some reasonable elbow-room in its operations and, in the exercise of its
statutory disciplinary functions, according it ample latitude in fixing, by
way of an appropriate issuance, administrative penalties with due regard
for the severity of the offense and attending mitigating or aggravating
circumstances, as the case may be, would be consistent with its mandate to
effectively and efficiently regulate the movie and television industry.
But even as we uphold the power of the MTRCB to review and
impose sanctions for violations of PD 1986, its decision to suspend
petitioner must be modified, for nowhere in that issuance, particularly
the power-defining Sec. 3 nor in the MTRCB Schedule of
Administrative Penalties effective January 1, 1999 is the Board
156

[69]

157

[70]

158

People v. Maceren, No. L-32166, October 18, 1977, 79 SCRA 450, 458.
Id.
[71]
Id.

221
empowered to suspend the program host or even to prevent certain
people from appearing in television programs. The MTRCB, to be sure,
may prohibit the broadcast of such television programs or cancel permits
for exhibition, but it may not suspend television personalities, for such
would be beyond its jurisdiction. The MTRCB cannot extend its exercise
of regulation beyond what the law provides. Only persons, offenses, and
penalties clearly falling clearly within the letter and spirit of PD 1986 will
be considered to be within the decrees penal or disciplinary operation.
And when it exists, the reasonable doubt must be resolved in favor of the
person charged with violating the statute and for whom the penalty is
sought. Thus, the MTRCBs decision in Administrative Case No. 01-04
dated September 27, 2004 and the subsequent order issued pursuant to said
decision must be modified. The suspension should cover only the
television program on which petitioner appeared and uttered the
offensive and obscene language, which sanction is what the law and
the facts obtaining call for.
In ending, what petitioner obviously advocates is an unrestricted
speech paradigm in which absolute permissiveness is the norm.
Petitioners flawed belief that he may simply utter gutter profanity on
television without adverse consequences, under the guise of free speech,
does not lend itself to acceptance in this jurisdiction. We repeat: freedoms
of speech and expression are not absolute freedoms. To say any act that
restrains speech should be greeted with furrowed brows is not to say that
any act that restrains or regulates speech or expression is per se invalid.
This only recognizes the importance of freedoms of speech and
expression, and indicates the necessity to carefully scrutinize acts that may
restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in Adm. Case No.
01-04 dated September 27, 2004 is hereby AFFIRMED with the
MODIFICATION of limiting the suspension to the program Ang Dating
Daan. As thus modified, the fallo of the MTRCB shall read as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby
rendered, imposing a penalty of THREE (3) MONTHS SUSPENSION
on the television program, Ang Dating Daan, subject of the instant
petition.
DISSENTING OPINION, Justice Antonio Carpio.
I dissent because the three-month suspension of petitioners TV
program Ang Dating Daan constitutes an unconstitutional prior restraint
on freedom of expression. The suspension prevents petitioner from
even reciting the Lords Prayer, or even saying hello to viewers, in
his TV program. The suspension bars the public airing of petitioners TV
program regardless of whatever subject matter petitioner, or anyone else,
wishes to discuss in petitioners TV program.

222
This is like suspending the publication of the Philippine Daily
Inquirer for three months if its editorial describes a private person as
masahol pa sa putang babae. This is also similar to suspending for
three months the column of a newspaper columnist for using the expletive
putang ina mo in his column. Such suspension is the censorship that the
Constitution outlaws when it states that [n]o law shall be passed
abridging the freedom of speech, of expression, or of the press x x x.159[1]
The remedy of any aggrieved person is to file a libel or tort case
after the utterance or publication of such cusswords. Our libels laws
punish with fine, imprisonment or damages libelous language already
uttered or published.160[2] Our tort laws also allow recovery of damages
for tortious speech already uttered or published.161[3] However, both our
libel and tort laws never impose a gag order on future expression because
that will constitute prior restraint or censorship. Thus, our libel and tort
laws do not allow the filing of a suit to enjoin or punish an expression that
has yet to be uttered or written.
Indeed, there can never be a prior restraint on future expression,
whether for fear of possible libelous utterance or publication, or as a
punishment for past libelous utterance or publication. Otherwise, many of
the radio and TV political programs will have to be banned for the
frequent use of cusswords and other libelous language. Even politicians
will have to be barred from addressing political rallies, or the rallies
themselves will have to be banned, because politicians often use
cusswords and other profanities during political rallies.
In the present case, the three-month preventive suspension of
petitioners TV program bars petitioner from talking about the weather, or
from talking about the birds and the bees, or even from talking about
nothingness, in his TV program. The public airing of the entire TV
program, regardless of its content, is totally suppressed for three months.
The Government has no power under the Constitution to so brazenly
suppress freedom of expression. This Court should never give its
imprimatur to such a blatant violation of a fundamental constitutional
right, which has been described as the one basic right that makes all other
civil, human and political rights possible.
Prior Restraint on Expression
The well-settled rule is there can be no prior restraint on
expression. This rule emanates from the constitutional command that
159

[1]
Section 4, Article III, Constitution.

160

[2]
Article 353-359, Revised Penal Code; Article 33, Civil Code.

161

[3]
Article 26, Civil Code.

223
[n]o law shall be passed abridging the freedom of speech, of expression,
or of the press x x x. The history of freedom of expression has been a
constant struggle against the censors prior restraint on expression. The
leading American case of Near v. Minnesota162[4] teaches us that the
primordial purpose of the Free Expression Clause is to prevent prior
restraint on expression.
This well-settled rule, however, is subject to exceptions narrowly
carved out by courts over time because of necessity. In this jurisdiction,
we recognize only four exceptions, namely: pornography,163[5] false or
misleading advertisement,164[6] advocacy of imminent lawless
action,165[7] and danger to national security.166[8]
Only in these
instances may expression be subject to prior restraint. All other
expression is not subject to prior restraint.
Although pornography, false or misleading advertisement,
advocacy of imminent lawless action, and expression endangering national
security may be subject to prior restraint, such prior restraint must hurdle a
high barrier. First, such prior restraint is strongly presumed as
unconstitutional. Second, the government bears a heavy burden of
justifying such prior restraint.167[9]
The test to determine the constitutionality of prior restraint on
pornography, advocacy of imminent lawless action, and expression
endangering national security is the clear and present danger test. The
expression subject to prior restraint must present a clear and present
danger of bringing about a substantive evil the State has a right and duty to
prevent, and such danger must be grave and imminent.168[10]
The power of Congress to impose prior restraint on false or
misleading advertisements emanates from the constitutional provision that
the advertising industry is impressed with public interest, and shall be

162

[4]
283 U.S. 697 (1931).

163

[5]
Gonzales v. Kalaw-Katigbak, 222 Phil. 225 (1985).

164

[6]
Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No. 173034,
9 October 2007, 535 SCRA 265.

165

[7]
Eastern Broadcasting Corporation v. Dans, No. 222 Phil. 151 (1985).

166

[8]
Id.

167

[9]
Iglesia ni Cristo (INC) v. Court of Appeals, G.R. No. 119673, 26 July 1996, 259 SCRA 529;
New York Times v. United States, 403 U.S. 713 (1971).

168

[10]
Bayan v. Ermita, G.R. Nos. 169838, 169848 and 169881, 25 April 2006, 488 SCRA 226.

224
regulated by law for the protection of consumers and the promotion of the
general welfare.169[11]
Prior restraint on expression may be either content-based or
content-neutral. Content-based prior restraint is aimed at suppressing the
message or idea contained in the expression. Courts subject content-based
restraint to strict scrutiny. Content-neutral restraint on expression is
restraint that regulates the time, place or manner of expression in public
places without any restraint on the content of the expression. Courts
subject content-neutral restraint to intermediate scrutiny.
Subsequent Punishment of Expression
The rule is also well-settled that expression cannot be subject to
subsequent punishment. This rule also emanates from the constitutional
command that [n]o law shall be passed abridging the freedom of speech,
of expression, or of the press x x x. However, courts again have carved
out narrow exceptions to this rule out of necessity.
The exceptions start with the four types of expression that may be
subject to prior restraint. If a certain expression is subject to prior
restraint, its utterance or publication in violation of the lawful restraint
naturally subjects the person responsible to subsequent punishment. Thus,
acts of pornography,170[12] false or misleading advertisement,171[13]
advocacy of imminent lawless action, 172[14] and endangering national
security,173[15] are all punishable under the law.
Two other exceptions are defamation,174[16] which includes libel
and slander, and tortious speech.175[17] Defamatory and tortious speech,
per se, are not subject to prior restraint because by definition they do not
constitute a clear and present danger to the State that is grave and
imminent. Once defamatory or tortuous speech rises to the level of
advocacy of imminent lawless action, then it may be subject to prior
restraint because it is seditious 176[18] but not because it is defamatory or
169

[11]
Section 11(2), Article XVI, Constitution.

170

[12]
Article 201, Revised Penal Code.

171

[13]
Section 6(a), Milk Code.

172

[14]
Article 142, Revised Penal Code.

173

[15]
Article 138, Revised Penal Code.

174

[16]
See note 2.

175

[17]
See note 3.

176

[18]

225
tortious. Defamation and tortious conduct, however, may be subject to
subsequent punishment, civilly or criminally.
Fighting words are not subject to subsequent punishment unless
they are defamatory or tortious. Fighting words refer to profane or vulgar
words that are likely to provoke a violent response from an audience.
Profane or vulgar words like Fuck the draft, when not directed at any
particular person, ethnic or religious group, are not subject to subsequent
punishment.177[19] As aptly stated, one mans vulgarity may be another
mans lyric.178[20]
If profane or vulgar language like Fuck the draft is
not subject to subsequent punishment, then with more reason it
cannot be subject to prior restraint. Without a law punishing the actual
utterance or publication of an expression, an expression cannot be subject
to prior restraint because such expression is not unlawful or illegal.
Prior restraint is more deleterious to freedom of expression than
subsequent punishment. Although subsequent punishment also deters
expression, still the ideas are disseminated to the public. Prior restraint
prevents even the dissemination of ideas to the public. Thus, the threemonth suspension of petitioners TV program, being a prior restraint on
expression, has far graver ramifications than any possible subsequent
punishment of petitioner.
Three-Month Suspension is a Prohibited Prior Restraint
The three-month suspension of petitioners TV program is
indisputably a prior restraint on expression. During the three-month
suspension, petitioner cannot utter a single word in his TV program
because the program is totally suppressed. A prior restraint may be
justified only if the expression falls under any of the four types of
expression that may be subject to prior restraint, namely, pornography,
false or misleading advertisement, advocacy of imminent lawless action,
and danger to national security.
Obviously, what petitioner uttered does not fall under any of the
four types of expression that may be subject to prior restraint. What
respondents assail is the following ranting of petitioner:
Lehitimong anak ng demonyo; sinungaling;

Articles 138 and 142, Revised Penal Code.

177

[19]
Cohen v. California, 403 U.S. 15 (1971).

178

[20]
Id.

226
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung
putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael
ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan.
Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang
kasinungalingan ng mga demonyong ito
No matter how offensive, profane or vulgar petitioners words may be,
they do not constitute pornography, false or misleading advertisement,
advocacy of imminent lawless action, or danger to national security. Thus,
petitioners offensive, profane or vulgar language cannot be subject to
prior restraint but may be subject to subsequent punishment if defamatory
or tortious.
Any prior restraint is strongly presumed to be unconstitutional and
the government bears a heavy burden of justifying such prior restraint. 179
[21]
Such prior restraint must pass the clear and present danger test. The
majority opinion, which imposes a prior restraint on expression, is
totally bereft of any discussion that petitioners ranting poses a clear
and present danger to the State that is grave and imminent. The
respondents have not presented any credible justification to overcome the
strong presumption of unconstitutionality accorded to the three-month
suspension order.
The three-month suspension cannot be passed off merely as a
preventive suspension that does not partake of a penalty. The actual and
real effect of the three-month suspension is a prior restraint on expression
in violation of a fundamental constitutional right. Even Congress cannot
validly pass a law imposing a three-month preventive suspension on
freedom of expression for offensive or vulgar language uttered in the past.
Congress may punish such offensive or vulgar language, after their
utterance, with damages, fine or imprisonment but Congress has no power
to suspend or suppress the peoples right to speak freely because of such
past utterances.
In short, Congress may pass a law punishing defamation or tortious
speech but the punishment cannot be the suspension or suppression of the
constitutional right to freedom of expression. Otherwise, such law would
be abridging the freedom of speech, of expression, or of the press.
If Congress cannot pass such a law, neither can respondent MTRCB
promulgate a rule or a decision suspending for three months petitioners
constitutional right to freedom of expression. And of course, neither can
this Court give its stamp of imprimatur to such an unconstitutional
MTRCB rule or decision.
Read:
179

[21]
See note 9.

227

1. Gonzales vs. Kalaw Katigbak, 137 SCRA 717

2. New York Times vs. U.S., 403 U.S. 713 (Any system of prior
restraints of expression comes to this Court bearing a heavy presumption
against its validity)
3. Near vs. Minnesota, 283 U.S. 697
4. Times Film vs. City of Chicago, 365 U.S. 43
5. Freedman vs. Maryland, 380 U.S. 51
8. Clear and present danger and dangerous tendency rule (whether the
words used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the
substantive evils that the State has the right to prevent)
7-a. Dangerous tendency rule (If the words uttered create a dangerous
tendency which the State has the right to prevent, then such words are
punishable)
Read:
1. Cabansag vs. Fernandez, 102 Phil. 152
2. Read again the Reyes and Ruiz cases, supra
3. Read again Zaldivar vs. Sandiganbayan, GR No.
7960-707&
Zaldivar vs. Gonzales, GR No.
80578, February 1, 1989
8. The balancing-of-interest test (When a particular conduct is
regulated in the interest of the public order, and the regulation results
in an indirect, conditional, partial abridgment of speech, the duty of
the courts is to determine which of the 2 conflicting interests demand
greater protection under the circumstances presented.)
Read:
AYER PRODUCTION VS. JUDGE CAPULONG, JUAN PONCE ENRILE,
ET AL., 160 SCRA 861
Read also:
1. Lagunzad vs. Gonzales, 92 SCRA 476
2. Gitlow vs. New York, 268 U.S. 652, including
this test by Justice Holmes
3. See also Zaldivar case above

the criticism on

CHAPTER VI - THE NON-ESTABLISHMENT

OF RELIGION CLAUSE
Section 5.
No law shall be made
respecting the establishment of religion,
or prohibiting the free exercise thereof.

228
The free exercise and enjoyment of
religious profession and worship, without
discrimination or preference shall forever
be allowed. No religious test shall be
required for the exercise of civil or
political rights.
ESTRADA VS. SOLEDAD ESCRITOR, 492 SCRA 1 (Resolution of
the Motion for Reconsideration), 408 SCRA 1
Puno, J.
Respondent is the Court interpreter of RTC Branch 253, Las Pinas
City. Complainant requested for an investigation of respondent for living
with a man not her husband while she was still legally married and having
borne a child within this live-in arrangement. Estrada believes that
Escritor is committing a grossly immoral act which tarnishes the image of
the judiciary, thus she should not be allowed to remain employed therein
as it might appear that the court condones her act.
Respondent admitted she started living with Luciano Quilapio, Jr.
more than 20 years ago when her husband was still alive but living with
another woman. She likewise admitted having a son with Quilapio but
denies any liability for alleged grossly immoral conduct because:

She is a member of the Jehovahs Witnesses and the Watch Tower Society;
That the conjugal arrangement was in conformity with their religious
beliefs;
That the conjugal arrangement with Quilapio has the approval of her
congregation.
Escritor likewise claimed that she had executed a DECLARATION OF
PLEDGING FAITHFULNESS in accordance with her religion which
allows members of the Jehovahs witnesses who have been abandoned by
their spouses to enter into marital relations. The Declaration thus makes
the resulting union moral and binding within the congregation all over the
world except in countries where divorce is allowed.
HELD:
Escritors conjugal arrangement cannot be penalized as she has
made out a case for exemption from the law based on her fundamental
right to religion. The Court recognizes that state interests must be upheld
in order that freedoms---including religious freedom---may be enjoyed. IN
THE AREA OF RELIGIOUS EXERCISE AS A PREFERRED
FREEDOM, HOWEVER, MAN STANDS ACCOUNTABLE TO AN
AUTHORITY HIGHER THAN THE STATE, and so the state interest
sought to be upheld must be so compelling that its violation will erode the

229
very fabric of the state that will also protect the freedom. In the absence of
a showing that the state interest exists, man must be allowed to subscribe
to the Infinite.
Escritor was therefore held not administratively liable for grossly
immoral conduct.
FREEDOM OF RELIGION
-any specific system of belief, worship or conduct, often involving
a code of ethics and philosophy.
-A profession of faith to an active power that binds and elevates
man to his Creator.
The existence of a Divine being is not necessarily inherent in religion;
the Buddhists espouses a way of life without reference to an omnipotent
God.
Strong fences make good neighbors. The idea is to delineate the
boundaries between two institutions and prevent encroachments by one
against the other.
The doctrine cuts both ways. It is not only the State that is
prohibited from interfering in purely ecclesiastical affairs; the Church is
likewise barred from meddling in purely secular matters.
NON-STABLISHMENT CLAUSE:
It simply means that the State cannot set up a church; nor pass
laws which aids one religion; aid all religion, or prefer one religion over
another nor force nor influence a person to go to or remain away from
church against his will; or force him to profess a belief or disbelief; that
the State cannot openly or secretly participate in the affairs of any
religious organization or group and vice versa (EVERSON VS. BOARD
OF EDUCATION, 330 US 1)
This clause seeks to protect:
Voluntarism---must come into existence through the voluntary support of
its members;
Insulation from political processgrowth through voluntary support of its
members will not take place if there is intervention from the State.
There will be no violation of the non-establishment clause if:
the statute has a secular legislative purpose;
its principal or primary effect is one that neither advances nor inhibits
religion; and

230
it does not foster an excessive government entanglement with religion.
(LEMON VS. KURTZMAN, 403 US 602)
The government is neutral and while protecting all, it prefers none and
disparages none. All here applies both to the believer and the nonbeliever. FREEDOM OF RELIGION INCLUDES FREEDOM FROM
RELIGION; THE RIGHT TO WORHIP INCLUDES THE RIGHT NOT
TO WORSHIP.
SCHOOL PRAYER CASE (ENGEL VS. VITALE, 370 US 421)
It is unconstitutional for a school to require the students to recite a
prayer composed by the Board of Regents at the starts of the days class.
It is no part of the business of government to compose official prayers for
any group of the American People.
SCHOOL DISTRICT OF ABINGTON VS. SCHEMPP, 374 US 203
It is unconstitutional for a law to require that at least 10 verses
from the Holy Bible be read daily without comment because the same
constitute a religious exercise which violates the non-establishment clause.
BOARD OF EDUCATION VS. ALLEN, 392 US 236
A law requiring the Board of Education to lend textbooks free of
charge to all students from grades 7-12 of parochial school. This is
constitutional since it is not the parochial school which gets the benefits
but the parents.
EVERSON VS. BOARD OF EDUCATION, 330 US 1
The law authorizing reimbursement of transportation expenses of
school children going to and from parochial schools is not violative of the
non-establishment clause because it will be the parents who get benefits,
not the parochial school.
RIGHT TO RELIGIOUS PROFESSION AND WORSHIP HAS TWO
ASPECTS:
a. Freedom to believe; and
b. Freedom to act.
IN the first, such freedom is absolute. He may indulge in his own
theories about life and death; worship any god he chooses, or none at all.
He may not be punished even if he cannot prove what he believes.
In the second, if the individual externalizes what he believes, his
freedom to do so becomes subject to the authority of the State. This is so
because religious freedom can be exercised only with due regard to the

231
rights of others. Example: Go forth and multiply---cannot marry several
times just to comply.
PEOPLE VS. LAGMAN & ZOSA, 38 O.G. 1676
Avoiding military duties based on religious grounds is not allowed
in the Philippines because of Section 4, Article IIThe state is the
protector of the people and it is the prime duty of the people to defend the
State and in the fulfillment of this duty, the State may call all citizens to
render military or civil service.
IN RE SUMMERS, 325 US 561
The act of the Illinois Supreme Court denying admission to the bar
because of his refusal to take in good faith an oath to support the
Constitution of the State of Illinois which requires mandatory service in
the military in times of war was reversed by the US Supreme Court stating
that this constitutes a violation of the 1st Amendment which guarantees
religious freedom.
1. Religious freedom in relation to impairment of
the right to join associations,36
SCRA 445

contracts and

2. Read:
1. Aglipay vs. Ruiz, 64 Phil. 201
2. Garces vs. Estenzo, 104 SCRA 510
3. INK vs. Gironella, 106 SCRA 1
4. American Bible Society vs. City of Manila, 101
5. Gerona vs. Sec. of Education, 106 Phil. 11
6. Pamil vs. Teleron, November 20, 1978
7. Victoriano vs. Elizalde Rope, 59 SCRA 54
7. German vs. Barangan, 135 SCRA 514

Phil. 398

ANG LADLAD LGBT PARTY VS. COMELEC, G.R. No. 190582, April 7, 2010
DEL CASTILLO, J.:
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an
application for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT
Party (Ang Ladlad) against the Resolutions of the Commission on Elections
(COMELEC) dated November 11, 2009 (the First Assailed Resolution) and December
16, 2009 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the
Assailed Resolutions). The case has its roots in the COMELECs refusal to accredit Ang
Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known
as the Party-List System Act.

232
Ang Ladlad is an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs).
Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in
2006. The application for accreditation was denied on the ground that the organization
had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a
Petition for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-represented sector that is particularly disadvantaged because of
their sexual orientation and gender identity; that LGBTs are victims of exclusion,
discrimination, and violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections. Ang Ladlad laid out its national membership base consisting
of individual members and organizational supporters, and outlined its platform of
governance.
On November 11, 2009, after admitting the petitioners evidence, the
COMELEC (Second Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner
defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT)
Community, thus:
x x x a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a persons capacity for profound emotional, affectional and sexual
attraction to, and intimate and sexual relations with, individuals of a different gender, of
the same gender, or more than one gender.
This definition of the LGBT sector makes it crystal clear that petitioner
tolerates immorality which offends religious beliefs.
The ANG LADLAD apparently advocates sexual immorality as indicated in
the Petitions par. 6F: Consensual partnerships or relationships by gays and lesbians who
are already of age. It is further indicated in par. 24 of the Petition which waves for the
record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated
as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship,
or accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal
Code are deemed part of the requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines
nuisance as Any act, omission, establishment, business, condition of property, or
anything else which x x x (3) shocks, defies; or disregards decency or morality x x x

233
It also collides with Article 1306 of the Civil Code: The contracting parties
may establish such stipulations, clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law, morals, good customs, public order or
public policy. Art 1409 of the Civil Code provides that Contracts whose cause, object or
purpose is contrary to law, morals, good customs, public order or public policy are
inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal
Code, as amended, penalizes Immoral doctrines, obscene publications and exhibitions
and indecent shows as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and
indecent shows. The penalty of prision mayor or a fine ranging from six thousand to
twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to
public morals;
When Ang Ladlad sought reconsideration to the COMELEC EN BANC, three
commissioners voted to overturn the First Assailed Resolution (Commissioners Gregorio
Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners
voted to deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T.
Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking
the tie and speaking for the majority in his Separate Opinion, upheld the First Assailed
Resolution, stating that:
Ladlad is applying for accreditation as a sectoral party in the party-list system.
Even assuming that it has properly proven its under-representation and marginalization, it
cannot be said that Ladlads expressed sexual orientations per se would benefit the
nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the
party-list system of electing congressional representatives is to enable Filipino citizens
belonging to marginalized and under-represented sectors, organizations and parties, and
who lack well-defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will benefit the nation as a
whole, to become members of the House of Representatives.
If entry into the party-list system would depend only on the ability of an
organization to represent its constituencies, then all representative organizations would
have found themselves into the party-list race. But that is not the intention of the framers
of the law. The party-list system is not a tool to advocate tolerance and acceptance of
misunderstood persons or groups of persons. Rather, the party-list system is a tool for
the realization of aspirations of marginalized individuals whose interests are also
the nations only that their interests have not been brought to the attention of the nation
because of their under representation. Until the time comes when Ladlad is able to
justify that having mixed sexual orientations and transgender identities is beneficial

234
to the nation, its application for accreditation under the party-list system will
remain just that.
Thus, even if societys understanding, tolerance, and acceptance of LGBTs is
elevated, there can be no denying that Ladlad constituencies are still males and females,
and they will remain either male or female protected by the same Bill of Rights that
applies to all citizens alike.
The COMELEC likewise used the Holy Bible and the Koran in denying
Ladlads application.
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul
the Assailed Resolutions and direct the COMELEC to grant Ang Ladlads application for
accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory
injunction against the COMELEC, which had previously announced that it would begin
printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, the Office of the Solicitor General (OSG was ordered to
file its Comment on behalf of COMELEC not later than 12:00 noon of January 11,
2010. Instead of filing a Comment, however, the OSG filed a Motion for Extension,
requesting that it be given until January 16, 2010 to Comment. Somewhat surprisingly,
the OSG later filed a Comment in support of petitioners application. Thus, in order to
give COMELEC the opportunity to fully ventilate its position, we required it to file its
own comment. The COMELEC, through its Law Department, filed its Comment on
February 2, 2010.
In the meantime, due to the urgency of the petition, a temporary restraining
order was issued on January 12, 2010, effective immediately and continuing until further
orders from this Court, directing the COMELEC to cease and desist from implementing
the Assailed Resolutions.
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a
Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-inIntervention. The CHR opined that the denial of Ang Ladlads petition on moral grounds
violated the standards and principles of the Constitution, the Universal Declaration of
Human Rights (UDHR), and the International Covenant on Civil and Political Rights
(ICCPR). On January 19, 2010, we granted the CHRs motion to intervene.
HELD:
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlads application for registration on the ground
that the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it
associated with or related to any of the sectors in the enumeration.

235
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for
the proposition that only those sectors specifically enumerated in the law or related to
said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals)
may be registered under the party-list system. As we explicitly ruled in Ang Bagong
Bayani-OFW Labor Party v. Commission on Elections, the enumeration of
marginalized and under-represented sectors is not exclusive. The crucial element is
not whether a sector is specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RA 7941.

A cursory perusal of Ang Ladlads initial petition shows that it never claimed to
exist in each province of the Philippines. Rather, petitioner alleged that the LGBT
community in the Philippines was estimated to constitute at least 670,000 persons; that it
had 16,100 affiliates and members around the country, and 4,044 members in its
electronic discussion group. Ang Ladlad also represented itself to be a national LGBT
umbrella organization with affiliates around the Philippines composed of the following
LGBT networks:

Abra Gay Association

Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan

236

Sining Kayumanggi Royal Family Rizal

Society of Transexual Women of the Philippines (STRAP) Metro Manila
Soul Jive Antipolo, Rizal
The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation. Indeed, aside from
COMELECs moral objection and the belated allegation of non-existence, nowhere in
the records has the respondent ever found/ruled that Ang Ladlad is not qualified to
register as a party-list organization under any of the requisites under RA 7941 or the
guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang
Ladlads morality, or lack thereof.
Our Constitution provides in Article III, Section 5 that [n]o law shall be
made respecting an establishment of religion, or prohibiting the free exercise
thereof. At bottom, what our non-establishment clause calls for is government
neutrality in religious matters. Clearly, governmental reliance on religious
justification is inconsistent with this policy of neutrality. We thus find that it was
grave violation of the non-establishment clause for the COMELEC to utilize the Bible
and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions
should depend, instead, on whether the COMELEC is able to advance some justification
for its rulings beyond mere conformity to religious doctrine. Otherwise stated,
government must act for secular purposes and in ways that have primarily secular
effects. As we held in Estrada v. Escritor:
x x x The morality referred to in the law is public and necessarily secular, not
religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in
public debate may influence the civil public order but public moral disputes may be
resolved only on grounds articulable in secular terms." Otherwise, if government relies
upon religious beliefs in formulating public policies and morals, the resulting policies and
morals would require conformity to what some might regard as religious programs or
agenda. The non-believers would therefore be compelled to conform to a standard of
conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious beliefs, it
would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary
religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it
appear that those whose beliefs are disapproved are second-class citizens.
We are not blind to the fact that, through the years, homosexual conduct, and
perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not
difficult to imagine the reasons behind this censure religious beliefs, convictions about
the preservation of marriage, family, and procreation, even dislike or distrust of

237
homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the
Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore,
these generally accepted public morals have not been convincingly transplanted into
the realm of law.
The Assailed Resolutions have not identified any specific overt immoral act
performed by Ang Ladlad. Even the OSG agrees that there should have been a finding
by the COMELEC that the groups members have committed or are committing immoral
acts. The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a
different gender, or more than one gender, but mere attraction does not translate to
immoral acts. There is a great divide between thought and action. Reduction ad
absurdum. If immoral thoughts could be penalized, COMELEC would have its hands
full of disqualification cases against both the straights and the gays. Certainly this is
not the intendment of the law.
Respondent has failed to explain what societal ills are sought to be prevented, or
why special protection is required for the youth. Neither has the COMELEC
condescended to justify its position that petitioners admission into the party-list system
would be so harmful as to irreparably damage the moral fabric of society. We, of course,
do not suggest that the state is wholly without authority to regulate matters concerning
morality, sexuality, and sexual relations, and we recognize that the government will and
should continue to restrict behavior considered detrimental to society. Nonetheless, we
cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate
morality on one end of an argument or another, without bothering to go through the
rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all
value. Clearly then, the bare invocation of morality will not remove an issue from our
scrutiny.
We also find the COMELECs reference to purported violations of our penal and
civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a
nuisance as any act, omission, establishment, condition of property, or anything else
which shocks, defies, or disregards decency or morality, the remedies for which are a
prosecution under the Revised Penal Code or any local ordinance, a civil action, or
abatement without judicial proceedings. A violation of Article 201 of the Revised Penal
Code, on the other hand, requires proof beyond reasonable doubt to support a criminal
conviction. It hardly needs to be emphasized that mere allegation of violation of laws is
not proof, and a mere blanket invocation of public morals cannot replace the institution of
civil or criminal proceedings and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation in the partylist system. The denial of Ang Ladlads registration on purely moral grounds amounts
more to a statement of dislike and disapproval of homosexuals, rather than a tool to
further any substantial public interest. Respondents blanket justifications give rise to the
inevitable conclusion that the COMELEC targets homosexuals themselves as a class, not
because of any particular morally reprehensible act. It is this selective targeting that
implicates our equal protection clause.

238
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which
provides nor shall any person be denied equal protection of the laws, courts have never
interpreted the provision as an absolute prohibition on classification. Equality, said
Aristotle, consists in the same treatment of similar persons. The equal protection
clause guarantees that no person or class of persons shall be deprived of the same
protection of laws which is enjoyed by other persons or other classes in the same place
and in like circumstances.
Recent jurisprudence has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, we will uphold the classification as
long as it bears a rational relationship to some legitimate government end. In
Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas, we
declared that [i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x have followed the rational basis test, coupled with a deferential
attitude to legislative classifications and a reluctance to invalidate a law unless
there is a showing of a clear and unequivocal breach of the Constitution.
The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason
to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has
expressed no such belief. No law exists to criminalize homosexual behavior or
expressions or parties about homosexual behavior. Indeed, even if we were to assume
that public opinion is as the COMELEC describes it, the asserted state interest here that
is, moral disapproval of an unpopular minority is not a legitimate state interest that is
sufficient to satisfy rational basis review under the equal protection clause. The
COMELECs differentiation, and its unsubstantiated claim that Ang Ladlad cannot
contribute to the formulation of legislation that would benefit the nation, furthers no
legitimate state interest other than disapproval of or dislike for a disfavored group.
It bears stressing that our finding that COMELECs act of differentiating LGBTs
from heterosexuals insofar as the party-list system is concerned does not imply that any
other law distinguishing between heterosexuals and homosexuals under different
circumstances would similarly fail. We disagree with the OSGs position that
homosexuals are a class in themselves for the purposes of the equal protection clause.
We are not prepared to single out homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient evidence to this effect, and it is
simply unnecessary to make such a ruling today. Petitioner itself has merely demanded
that it be recognized under the same basis as all other groups similarly situated, and that
the COMELEC made an unwarranted and impermissible classification not justified by
the circumstances of the case.
Freedom of Expression and Association
Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are favorably received
but also to those that offend, shock, or disturb. Any restriction imposed in this sphere
must be proportionate to the legitimate aim pursued. Absent any compelling state interest,
it is not for the COMELEC or this Court to impose its views on the populace. Otherwise

239
stated, the COMELEC is certainly not free to interfere with speech for no better reason
than promoting an approved message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is
not illegal in this country. It follows that both expressions concerning ones
homosexuality and the activity of forming a political association that supports LGBT
individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates public morality does
not justify criminalizing same-sex conduct. European and United Nations judicial
decisions have ruled in favor of gay rights claimants on both privacy and equality
grounds, citing general privacy and equal protection provisions in foreign and
international texts. To the extent that there is much to learn from other jurisdictions that
have reflected on the issues we face here, such jurisprudence is certainly illuminating.
These foreign authorities, while not formally binding on Philippine courts, may
nevertheless have persuasive influence on the Courts analysis.
In the area of freedom of expression, for instance, United States courts
have ruled that existing free speech doctrines protect gay and lesbian rights to
expressive conduct. In order to justify the prohibition of a particular expression of
opinion, public institutions must show that their actions were caused by
something more than a mere desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint.
With respect to freedom of association for the advancement of ideas and beliefs,
in Europe, with its vibrant human rights tradition, the European Court of Human Rights
(ECHR) has repeatedly stated that a political party may campaign for a change in the law
or the constitutional structures of a state if it uses legal and democratic means and the
changes it proposes are consistent with democratic principles. The ECHR has
emphasized that political ideas that challenge the existing order and whose realization is
advocated by peaceful means must be afforded a proper opportunity of expression
through the exercise of the right of association, even if such ideas may seem shocking or
unacceptable to the authorities or the majority of the population. A political group should
not be hindered solely because it seeks to publicly debate controversial political issues in
order to find solutions capable of satisfying everyone concerned. Only if a political party
incites violence or puts forward policies that are incompatible with democracy does it fall
outside the protection of the freedom of association guarantee.
We do not doubt that a number of our citizens may believe that homosexual
conduct is distasteful, offensive, or even defiant. They are entitled to hold and express
that view. On the other hand, LGBTs and their supporters, in all likelihood, believe with
equal fervor that relationships between individuals of the same sex are morally equivalent
to heterosexual relationships. They, too, are entitled to hold and express that view.
However, as far as this Court is concerned, our democracy precludes using the religious
or moral views of one part of the community to exclude from consideration the values of
other members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay
rights litigants. It well may be that this Decision will only serve to highlight the

240
discrepancy between the rigid constitutional analysis of this Court and the more complex
moral sentiments of Filipinos. We do not suggest that public opinion, even at its most
liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither
attempt nor expect to affect individual perceptions of homosexuality through this
Decision.
WHEREFORE, the Petition is hereby GRANTED.
ROEL EBRALINAG, ET AL VS. THE DIVISION
SUPERINTENDENT OF SCHOOLS OF CEBU, March 1, 1993

Grino--Aquino, J.
Facts:
1. The petitioners are high school and grade schools students enrolled in
the different public schools of the Province of Cebu and who belong to the
religious group known as the Jehovah's Witnesses;
2. That they rrefused to take part in the flag ceremony which includes
playing by a band or singing the Philippine National Anthem, saluting the
Philippine Flag and reciting the patriotic pledge because they considered
the flag as an image and they should not worship it except GOD;
3. That because of their refusal to perform the foregoing acts as required
by RA 1265 of July 11, 1955 and by Department Order No. 8 dated July
21, 1955 of the DECS making the flag ceremony compulsory in all
educational institutions, they were expelled by the respondent school
authorities.
Hence this petition.
Issue:
-----May the petitioners be expelled for refusing to salute the flag,
recite the patriotic pledge or sing the national anthem in order to follow
their religious beliefs?
Held:
The same issue was raised in Gerona vs. Secretary of Education,
106 Phil. 2 (1959) and Balbuna vs. Secretary of Education, 110 Phil. 150
(1960) where the SC held that:
The flag is not an image but a symbol of the Republic of the
Philippines, an emblem of national sovereignty, of national unity and

241
cohesion and of freedom and liberty which it and the Constitution
guarantee and protect. Under a system of complete separation of church
and state in the government, the flag is utterly devoid of any religious
significance.
The law, RA 1265 was likewise incorporated in Executive Order
No. 297, September 21, 1988.
Our task is extremely difficult for the 30-year old decision of this
Court in GERONA upholding the salute law and approving the expulsion
of students who refuse to obey it, is not lightly to be trifled with.
The idea that one may be compelled to salute the flag, sing the
national anthem, and recite the patriotic pledge, during flag ceremony on
pain of being dismissed from one's job or be expelled in school, IS ALIEN
TO THE CONSCIENCE OF THE PRESENT GENERATION OF
FILIPINOS WHO CUT THEIR TEETH ON THE BILL OF RIGHTS
WHICH GUARANTEES THEIR RIGHTS TO FREE SPEECH AND
THE FREE EXERCISE OF RELIGIOUS PROFESSION AND
WORSHIP (Section 5, Art. III, 1987 Constitution).
Religious freedom is a fundamental right which is entitled to the
highest priority and the amplest protection among human rights, for it
involves the relationship of man and his Creator (Chief Justice Fernando's
separate opinion in German vs. Barangan, 135 SCRA 530).
The right to religious profession has a two-fold aspect, vis.,
freedom to believe and freedom to act on one's belief. The first is absolute
as long as the belief is confined within the realm of the thought. The
second is subject to regulation where the belief is translated into external
acts that affect the public welfare.
The sole justification for a prior restraint or limitation on the
exercise of religious freedom (according the Former Chief justice
Teehankee in his dissenting opinion in German vs. Baranagan) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or
any other legitimate public interest, that the State has the right and duty to
presvent. Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified since they are not doing
anything that could warrant their expulsion since during flag ceremonies,
they just quietly stand at attention to show their respect for the rights of
others who choose to participate in the solemn proceedings.
In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, we
upheld the exemption of the members of the Iglesia ni Kristo from the
coverage of the closed-shop agreement between the labor union and the
company because it would violate the teaching of their church not to join
any labor group.

242

We hold that a similar exemption may be accorded to the Jehovah's

Witnesses with regard to the observance of the flag ceremony out of
respect to their religious beliefs, however "bizarre" those beliefs may seem
to others
CHAPTER VII - THE CONSTITUTIONAL
RIGHT TO TRAVEL
Section 6. The liberty of abode and of
changing the same within the limits
prescribed by law shall not be impaired
except upon lawful order of the court.
Neither shall the right to travel be
impaired except in the interest of national
security, public safety, or public health, as
may be provided by law.
NOTE: THE APPLICABLE PROVISION OF THE HUMAN SECURITY
ACT ON THE RIGHT TO TRAVEL
Section 26 provides that persons who have been charged with
terrorism or conspiracy to commit terrorism---even if they have been
granted bail because evidence of guilt is not strongcan be:

Detained under house arrest;

Restricted from traveling; and/or
Prohibited from using any cellular phones, computers, or other means of
communications with people outside their residence.
Upon application of the prosecutor, the suspects right to travel shall be
limited to the municipality or city where he resides or where the case is
pending, in the interest of national security and public safety. Travel
outside of said municipality or city, without the authorization of the court,
shall be deemed a violation of the terms and conditions of the bail which
shall then be forfeited as provided in the Rules of Court.
These restrictions shall be terminated upon acquittal of the
accused; or the dismissal of the case filed against him; or earlier upon the
discretion of the court or upon motion of the prosecutor.
1. The constitutional as well as human right to travel,
2. Read:

129 SCRA

243
FERDINAND MARCOS, ET AL. VS. HON. RAUL MANGLAPUS,
ET AL., G.R. NO. 88211, September 15, 1989 and the Resolution of
the Motion for Reconsideration dated October 27, 1989
right to travel; liberty of abode
and "right to return"
En banc
Cortes, J.
This is a petition for mandamus and prohibition asking the Supreme
Court to Order the respondents to issue travel documents to the petitioners
and to enjoin the implementation of the President's decision to bar their
return to the Philippines.
The case for the petitioners is founded on the assertion that their right
to return to the Philippines is guaranteed by the following provisions of
the Constitution:
Section 1. No person shall be deprived of life liberty or property
without due process of law, nor shall any person be denied equal
protection of the laws.
Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except in the interest of
national security, public safety or public health, as may be provided by
law.
The petitioners contend that the President has no power to impair the
liberty of abode of the Marcoses because only the Courts may do so
"within the limits prescribed by law". Nor may the President impair the
right to travel because no law has authorized her to do so.
Also, the petitioners claim that under international law, particularly the
Universal Declaration of Humjan Rights guaranteed the right of the
Marcoses to return to the Philippines. Thus:
Art. 13 (1) Everyone has the right to freedom of movement and residence
within the borders of each state.
(2) Everyone has the right to leave any country, including his own, AND
TO RETURN TO HIS COUNTRY.
Likewise, under the International Covenant on Civil and Political
Rights, which had been ratified by the Philippines, provides:
Art. 12

244
4) No one shall be arbitrarily deprived of the right to enter his own
country.
The respondents argue that the issue in this case involves a political
question which is therefore beyond the jurisdiction of the Court.
Furthermore, they argue that the right of the state to national security
prevails over individual rights, citing Section 4, Art. II of the 1987
Philippine Constitution.
Issue:
Whether or not, in the exercise of the powers granted in the Constitution,
the President may prohibit the Marcoses from returning to the Philippines.
The sub-issues, which could help in the determination of the main
issue, are:
1. Does the President have the power to bar the Marcoses to return to
the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former Pres. Marcos
and his family from returning to the Philippines, in the interest of national
security, public safety or public health, has the President made a finding
that the return of the petitioners to the Philippines is a clear and present
danger to national security, public welfare or public health. And if she has
made that finding, have the requirements of due process been complied
with in making such finding? Has there been prior notice to the
petitioners?
Held:
It must be emphasized that the individual right involved in this case is
not the right to travel from the Philippines to other countries or within the
Philippines. These are what the right to travel connote. Essentially, the
right to return to one's country, a totally distinct right under international
law, independent from, though related to the right to travel. Thus, even the
Universal declaration of Human Rights and the International Covenant on
Civil and Political Rights treat the right to freedom of movement and
abode within the territory of the state, the right to leave a country and the
right to enter one's country as separate and distinct rights.
THE RIGHT TO RETURN TO ONE'S COUNTRY IS NOT
AMONG THE RIGHTS SPECIFICALLY GUARANTEED BY THE
BILL OF RIGHTS, WHICH TREATS ONLY OF THE LIBERTY OF
ABODE AND THE RIGHT TO TRAVEL, BUT IT IS OUR WELLCONSIDERED VIEW THAT THE RIGHT TO RETURN MAY BE
CONSIDERED AS A GENERALLY ACCEPTED PRINCIPLE OF

245
INTERNATIONAL LAW, UNDER OUR CONSTITUTION, IS PART
OF THE LAW OF THE LAND.
To the President, the problem is one of balancing the general
welfare and the common good against the exercise of rights of certain
individuals. The power involved is the President's RESIDUAL
POWER to protect the general welfare of the people.
The court cannot close its eyes to present realities and pretend that the
country is not besieged by the insurgency, separatist movement in
Mindanao, rightist conspiracies to grab power, etc. With these before her,
the President cannot be said to have acted arbitrarily, capriciously and
whimsically.
Lastly, the issue involved in the case at bar is not political in nature
since under Section 1, Art. VIII of the Constitution, judicial power now
includes the duty to "determine whether or not there has been a grave
abuse of discretion amounting to lack of jurisdiction on the part of any
branch or instrumentality of the government."
NOTE:
The main opinion was concurred in by 7 justices (CJ Fernan, Narvasa,
Melencio-Herrera, Gancayco, Grino-Aquino, Medialdea and Regalado) or
a total of 8 justices in voting in favor of DISMISSING the petition. Seven
justices filed separate dissenting opinions (Gutierrez, Jr., Cruz, Paras,
Feliciano, Padilla, Bidin and Sarmiento).
***********************
Gutierrez, Jr., J., dissenting.
With all due respect for the majority in the Court that the main issue in
this case is not one of power but one on RIGHTS. If he comes home, the
government has the power to arrest and punish him but does it have the
power to deny him his right to come home and die among familiar
surroundings? x x x The government has more than ample powers under
existing laws to deal with a person who transgresses the peace and
imperils public safety. BUT THE DENIAL OF TRAVEL PAPERS IS NOT
ONE OF THOSE POWERS BECAUSE THE BILL OF RIGHTS SAY
SO. THERE IS NO LAW PRESCRIBING EXILE IN FOREIGN LAND
AS THE PENALTY FOR HURTING THE NATION.
. The fears expressed by its representatives were based on mere
conjectures of political and economic destabilization without any single
piece of concrete evidence to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion that there
exist "factual bases for the President's decision" to bar Marcos's return.

246
That is not my recollection of the impressions of the Court after the
hearing.
2. Silverio vs. CA, April 8, 1991
Read also:
1. Caunca vs. Salazar, 82 Phil. 851
2. Kwong vs. PCGG, December 7,l987
Manotoc vs. CA, 142 SCRA 149
1. Petitioner Ricardo Manotoc, Jr. has 6 criminal cases for estafa pending
against him. In said cases he was admitted to bail with the FGU Insurance
Corporation as surety.
He is also involved in a case pending before the Securities and
Exchange Commission.
2. The SEC requested the Commissioner on Immigration not to clear
petitioner for departure pending disposition of the case involving him. The
same was granted by the Commissioner.
3. Petitioner subsequently filed before the trial courts a motion entitled
"motion for permission to leave the country" stating as ground therefor his
desire to go to the United States, "relative to his business transactions and
opportunities".
4. The motion was denied by the lower courts and the matter was
elevated to the Court of Appeals which also denied the same. Petitioner
brings the matter to the S.C. claiming his constitutional right to travel and
also contending that having been admitted to bail as a matter of right,
neither the courts which granted him bail nor the SEC would have
jurisdiction over his liberty.
HELD:
Petition denied.
a. A court has the power to prohibit a person admitted to bail from
leaving the Philippines. This is a necessary consequence of the nature and
function of a bail bond. The condition imposed upon petitioner to make
himself available at all times whenever the court requires his presence
operates as a valid restriction on his right to travel.
b. "x x x the result of the obligation assumed by appellee to hold the
accused amenable at all times to the orders and processes of the lower
court, was to prohibit the accused from leaving the jurisdiction of the
Philippines, because, otherwise, said orders and processes will be
nugatory, and inasmuch as the jurisdiction of the courts from which they

247
issued does not extend beyond that of the Philippines they would have no
binding force outside of said jurisdiction."(People vs. Uy Tuising, 61
Phil. 404 (l935)
c. To allow the petitioner to leave the Philippines without sufficient
reason would place him beyond the reach of the courts.
d. Petitioner cites the Court of Appeals case of People vs. Shepherd
(C.A.-G.R. No. 23505-R, Feb. 13, 1980) as authority for his claim that he
could travel. The S.C. held however that said case is not squarely on all
fours with the case at bar. Unlike the Shepherd case, petitioner has failed
to satisfy the courts of the urgency of his travel, the duration thereof, as
well as the consent of his surety to the proposed travel.
e. It may thus be inferred that the fact that a criminal case is pending
against an accused does not automatically bar him from travelling abroad.
He must however convince the courts of the urgency of his travel, the
duration thereof, and that his sureties are willing to undertake the
responsibility of allowing him to travel.
4. Villavicencio vs. Lukban, 39 Phil. 778
5. Roan vs. Gonzales, supra.
6. Salonga vs. Hermoso, 97 SCRA 121
7. Read also the Ferdinand Marcos Cases of August
1989

& October,

CHAPTER VIII - THE CONSTITUTIONAL

RIGHT TO INFORMATION
Section 7. The right of the people to
information on matters of public concern
shall be recognized. Access to official
recordsshall be afforded the citizen
subject to such limitations as may be
provided by law.
1. Read:
Right to Privacy; right to information on matters of public concern;
CAMILO L. SABIO vs. GORDON, G.R. No. 174340, October 17,
2006, 504 SCRA 704
Sandoval-Gutierrez, J.
The Facts:

248
On February 20, 2006, Senator Miriam Defensor Santiago
introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455), 180
[4]
directing an inquiry in aid of legislation on the anomalous losses
incurred by the Philippines Overseas Telecommunications Corporation
(POTC),
Philippine
Communications
Satellite
Corporation
(PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to
the alleged improprieties in their operations by their respective Board of
Directors. The pertinent portions of the Resolution read:

WHEREAS, in the last quarter of 2005, the representation and

entertainment expense of the PHC skyrocketed to P4.3 million, as
compared to the previous years mere P106 thousand;
WHEREAS, some board members established wholly owned PHC
subsidiary called Telecommunications Center, Inc. (TCI), where PHC
funds are allegedly siphoned; in 18 months, over P73 million had been
allegedly advanced to TCI without any accountability report given to PHC
and PHILCOMSAT;
WHEREAS, the Philippine Star, in its 12 February 2002 issue
reported that the executive committee of Philcomsat has precipitately
released P265 million and granted P125 million loan to a relative of an
executive committee member; to date there have been no payments given,
subjecting the company to an estimated interest income loss of P11.25
million in 2004;
WHEREFORE, be it resolved that the proper Senate
Committee shall conduct an inquiry in aid of legislation, on the
anomalous losses incurred by the Philippine Overseas
Telecommunications
Corporation
(POTC),
Philippine
Communications Satellite Corporation (PHILCOMSAT), and
Philcomsat Holdings Corporations (PHC) due to the alleged
improprieties in the operations by their respective board of directors.
On May 8, 2006, Chief of Staff Rio C. Inocencio, under the
authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio
of the PCGG, one of the herein petitioners, inviting him to be one of the
resource persons in the public meeting jointly conducted by the
Committee on Government Corporations and Public Enterprises and
Committee on Public Services. The purpose of the public meeting was to
deliberate on Senate Res. No. 455.181[6]

On May 9, 2006, Chairman Sabio declined the invitation because

of prior commitment.182[7] At the same time, he invoked Section 4(b) of
E.O. No. 1 earlier quoted. On September 12, 2006, at around 10:45 a.m.,
180[4]
181[6]

Annex E of the Petition in G.R. No. 174318.

Annex F of the Petition in G.R. No. 174318.

249
Major General Balajadia arrested Chairman Sabio in his office at IRC
Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate
premises where he was detained. Hence, Chairman Sabio filed with the
Supreme Court a petition for habeas corpus against the Senate Committee
on Government Corporations and Public Enterprises and Committee on
Public Services, their Chairmen, Senators Richard Gordon and Joker P.
Arroyo and Members. The case was docketed as G.R. No. 174340.

I S S U E S:

Is the refusal of the petitioners to testify in Congress by virtue of

EO No. 1, Section 4 [b] violates the constitutional provision on
information on matters of public concern?

H E L D:

Yes.

Section 4(b) of E.O. No.1 which was invoked by the petitioners in

support of their refusal to testify in the Senate limits the power of
legislative inquiry by exempting all PCGG members or staff from
testifying in any judicial, legislative or administrative proceeding, thus:

No member or staff of the Commission shall be required to

testify or produce evidence in any judicial, legislative or
administrative proceeding concerning matters within its official
cognizance.

Such provision of EO No. 1 is unconstitutional because it violates

the constitutional provision ensuring the peoples access to information on
matters of public

BANTAY REPUBLIC ACT

SCRA 1

VS. COMELEC, MAY 4, 2007, 523

The petitioner requested the COMELEC to publish the

individual nominees of all the party-list groups in order that they will
be guided on what party-list group shall be supported by them. The
182[7]

Annex G of the Petition in G.R. No. 174318.

250
COMELEC held that under the Party-list Act, such list of nominees is
confidential and should not be published.
Held:
The COMELEC should publish the list of nominees of all the
party-list groups. This is in accordance with the right to information
on matters of public concern which shall be accorded to every citizen.
VALMONTE VS. BELMONTE, GR NO. 74930, FEBRUARY 13,
1989 in relation to the Right to Privacy
Cortes, J.
Facts:
1. On June 4, 1986, petitioner Valmonte wrote the respondent asking the
latter to furnish him copies of former members of the Batasang Pambansa
who were able to secure a "clean loan" from the GSIS prior to the
February 7, 1986 elections;
2. On June 17, 1986, respondent through counsel refused to give
petitioner a list of said lawmakers who obtained "clean loans" from
GSIS on the ground that there is a confidential relationship between
GSIS and its borrowers and it would be proper for them to preserve
same;

the
the
the
the

3. On July 19, 1986, the petitioners filed this instant petition.

Issues:
1. Whether or not the case should be dismissed for failure to exhaust
administrative remedies?
2. Whether or not the petitioners are entitled to the documents sought in
accordance with their constitutional right to information?
Held:
1. It is well-settled in our jurisdiction that before a party can be allowed to
resort to the courts, he is expected to have exhausted all means of
administrative redress available under the law.
In the case at bar, the decision of the General Manager of the GSIS is
appealable/reviewable by the GSIS Board of Trustees. Petitioners did not
ask the Board of Trustees to review the decision of the respondent.

251
However, the rule on exhaustion of administrative remedies is not
applicable when only questions of law is involved. (Pascual vs. Provincial
Board, 106 Phil. 466; Aguilar vs. Valencia, 40 SCRA 210; Malabanan vs.
Ramento, 129 SCRA 359.
This is not the first time that the court is confronted with a case
involving the right to information. In Tanada vs. Tuvera, 136 SCRA 27,
we upheld the citizen's right to information as well as in Legaspi vs. CSC,
150 SCRA 530 and ordered the government officers involved to act as
prayed for by the petitioners. The pertinent provision of the Constitution is
Section 7, Art. III which provides:
The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions x x x shall be afforded the citizen,
subject to such limitations as may be provided for by law.
The postulate of public office is a public trust as institutionalized in the
Constitution (Sec. 1, Art. XI) to protect the people from abuse of
governmental power, would certainly be empty words if access to
information of public concern is denied except under limitations
prescribed by law.
Petitioners are members of the media. As such, they have both the right
to gather and the obligation to check the accuracy of the information they
disseminate x x x
The right to information is an essential premise of a meaningful right to
speech and expression. But this is not to say that the right to information is
merely an adjunct of and therefore restricted in application by the exercise
of the freedom of speech and of the press. Far from it. The right to
information goes hand in hand with the constitutional policies of "full
public disclosure" and "honesty in the public service".
Yet, like all the constitutional guarantees, the right to information is not
absolute. It is subject to limitations provided for by law and the people's
right to information is limited to "matters of public concern". Similarly,
the State's policy of full disclosure is limited to "transactions involving
public interest" and subject to "reasonable conditions prescribed by law."
The information sought to be obtained by the petitioners affect public
interest since the GSIS is the trustee of contributions from the government
and its employees. The funds of the GSIS assume a public character and
that its obligations are guaranteed by the government.
The petitioners are entitled to access to documents sought subject to
reasonable regulations that the respondent may impose relating to manner
and hours of examination, to the end that damage or loss of the records
may be avoided, that undue interference with the duties of the custodian of

252
the records may be prevented and that the right of other persons entitled to
inspect the records may be insured [Legaspi vs. CSC, supra; Subido vs.
Ozaeta, 80 Phil. 383]
he petitioners, however, are not entitled to be furnished copies of list of
alleged members of the Batasang Pambansa who were able to secure clean
loans through the intercessions of Pres. Marcos and the First Lady. This is
so because access to public records does not include the right to compel
custodians of official records to prepare lists, abstracts, summaries and the
like in their desire to acquire information on matters of public concern.
The respondent is therefore ordered to allow petitioners access to
documents and records evidencing loans granted to members of the
Batasang Pambansa, as petitioners may specify, subject to reasonable rules
and regulations as the GSIS may deem necessary.
SENATE OF THE PHILIPPINES, represented by SENATE
PRESIDENT FRANKLIN DRILON, ET AL., VS. EXEC. SEC.
EDUARDO ERMITA, ET AL., G.R. No. 16977, April 20, 2006

CARPIO MORALES, J.:

The Facts:
In the exercise of its legislative power, the Senate of the
Philippines, through its various Senate Committees, conducts inquiries or
investigations in aid of legislation which call for, inter alia, the attendance
of officials and employees of the executive department, bureaus, and
offices including those employed in Government Owned and Controlled
Corporations, the Armed Forces of the Philippines (AFP), and the
Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a
whole issued invitations to various officials of the Executive Department
for them to appear on September 29, 2005 as resource speakers in a public
hearing on the railway project of the North Luzon Railways Corporation
with the China National Machinery and Equipment Group (hereinafter
North Rail Project). The public hearing was sparked by a privilege speech
of Senator Juan Ponce Enrile urging the Senate to investigate the alleged
overpricing and other unlawful provisions of the contract covering the
North Rail Project.
On September 28, 2005, the President of the Philippines issued
E.O. 464, ENSURING OBSERVANCE OF THE PRINCIPLE OF
SEPARATION OF POWERS, ADHERENCE TO THE RULE ON
EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF
PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN
AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR

253
OTHER PURPOSES, which, pursuant to Section 6 thereof, took effect
immediately. The salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. In
accordance with Article VI, Section 22 of the Constitution and to
implement the Constitutional provisions on the separation of powers
between co-equal branches of the government, all heads of departments
of the Executive Branch of the government shall secure the consent of
the President prior to appearing before either House of Congress.
When the security of the State or the public interest so requires and the
President so states in writing, the appearance shall only be conducted in
executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive
privilege is fundamental to the operation of government and rooted in the
separation of powers under the Constitution (Almonte vs. Vasquez, G.R.
No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of
Conduct and Ethical Standards for Public Officials and Employees
provides that Public Officials and Employees shall not use or divulge
confidential or classified information officially known to them by reason
of their office and not made available to the public to prejudice the public
interest.
(b) Who are covered. The following are covered by this executive
order:
1.
2.
3.
4.
5.

Senior officials of executive departments who in the judgment of

the department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines
and such other officers who in the judgment of the Chief of Staff are
covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief
superintendent or higher and such other officers who in the judgment of
the Chief of the PNP are covered by the executive privilege;
Senior national security officials who in the judgment of the
National Security Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.
I S S U E S:
1. Whether E.O. 464 violates the right of the people to information
on matters of public concern; and

254
H E L D:
E.O 464 likewise violates the constitutional provision on the right
to information on matters of public concern. There are clear distinctions
between the right of Congress to information which underlies the power of
inquiry and the right of the people to information on matters of public
concern. For one, the demand of a citizen for the production of documents
pursuant to his right to information does not have the same obligatory
force as a subpoena duces tecum issued by Congress. Neither does the
right to information grant a citizen the power to exact testimony from
government officials. These powers belong only to Congress and not to an
individual citizen.
To the extent that investigations in aid of legislation are generally
conducted in public, however, any executive issuance tending to unduly
limit disclosures of information in such investigations necessarily deprives
the people of information which, being presumed to be in aid of
legislation, is presumed to be a matter of public concern. The citizens are
thereby denied access to information which they can use in formulating
their own opinions on the matter before Congress opinions which they
can then communicate to their representatives and other government
officials through the various legal means allowed by their freedom of
expression. Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive
and be responsive to the peoples will. Yet, this open dialogue can be
effective only to the extent that the citizenry is informed and thus able
to formulate its will intelligently. Only when the participants in the
discussion are aware of the issues and have access to information relating
thereto can such bear fruit.183 (Emphasis and underscoring supplied)
The impairment of the right of the people to information as a
consequence of E.O. 464 is, therefore, in the sense explained above, just
as direct as its violation of the legislatures power of inquiry.
1-a. Legaspi vs. CSC, 150 SCRA 530
1-b. Brilliantes vs. Chang, Aug. 14, 1990
1-c. Canlas vs. Vazquez, July 3, 1990
1-d. Aquino-Sarmiento vs. Manuel Morato, November 13, 1991
2. Tanada vs. Tuvera, 146 SCRA 44
3. Baldoza vs. Dimaano, 71 SCRA 14
4. Lantaco vs. Lllamas, 108 SCRA 502
5. Subido vs. Ozaeta, 80 Phil. 383
CHAPTER IX - THE CONSTITUTIONAL
RIGHT TO FORM AND JOIN ASSOCIATIONS
183

G.R. No. 74930, February 13, 1989, 170 SCRA 256.

255
Section 8. The right of the people,
including those employed in the public
and private sectors, to form unions,
associations, societies for purposes not
contrary to law shall not be abridged.
1. Freedom of Association, 100 SCRA 100
2. The fundamental right of self-organization,108 SCRA 390
3. The right of self-organization of managerial
434

employees,47 SCRA

4. Read:
1. In re: ATTY. EDILLON, 84 SCRA 554
2. Tarnate vs. Noriel, 100 SCRA 93
3. Samahan ng Manggagawa vs. Noriel, 108 SCRA 381
4. Villar vs. Inciong, April 20,l983
5. P. vs. Ferrer, 48 SCRA 382
6. P. vs. Ferrer, 56 SCRA 793 (Read the dissenting
Justice FERNANDO in both cases)

opinion of

CHAPTER X - THE POWER

OF EMINENT DOMAIN
Section 9. Private property shall not be
taken for public use without just
compensation
1. The inherent power of eminent domain,93 SCRA 663
2. Who may exercise it? How about a barangay? Yes with the Presidents
approval.
Read:
1. Barangay Matictic vs. Elbinias, 148 SCRA 83
2. Procedure for the exercise of said power; Extent of payment to be made
before writ of possession shall be issued in favor of the government.
Value of property expropriated for national government projects;
Writ of possession when it shall be issued by the court; when Rule 67 of
the Rules of Court and when RA 8974 shall apply; full payment of just
compensation before government takes over.

256
REPUBLIC OF THE PHILIPPINES VS. JUDGE GINGOYON, 478
SCRA 474
Tinga, J.
Facts:
In 2003, the Supreme Court held in AGAN VS. PIATCO, 402
SCRA 612 that the CONCESSION AGREEMENT FOR THE BUILD
OPERATE TRANSFER ARRANGEMENT OF THE NINOY AQUINO
INTERNATIONAL AIRPORT PASSENGER TERMINAL II between the
Philippine Government and the Philippine International Air Terminals Co.,
Inc. (PIATCO) as well as the amendments thereto is void for being
contrary to law and public policy. On Motion for Reconsideration (420
SCRA 420), the Supreme Court held that:
This Court, however, is not unmindful of the reality that the
structures comprising the NAIA IPT III facility are almost complete and
that funds have been spent by PIATCO in their construction. For the
government to take over the said facility, IT HAS TO COMPENSATE
RESPONDENT PIATCO AS BUILDER OF THE SAID
STRUCTURES. THE COMPENSATION MUST BE JUST AND IN
ACCORDANCE WITH LAW AND EQUITY FOR THE
GOVERNMENT CAN NOT UNJUSTLY ENRICH ITSELF AT THE
EXPENSE OF PIATCO AND ITS INVESTORS.
On December 21, 2004, the Government filed a complaint for
expropriation with the RTC of Pasay City seeking a writ of possession
authorizing to take immediate possession and control over NAIA 3
facilities and deposited the amount of P3.0B in cash with Land Bank of
the Philippines representing the assessed value of the terminals assessed
value for taxation purposes.
On the same day, Judge Gingoyon issued an Order directing the
issuance of a writ of possession to the government to take or enter upon
the possession of the NAIA 3 facilities. It held that it is the ministerial
duty of the government to issue writ of possession upon deposit of the
assessed value of the property subject of expropriation.
However, on January 4, 2005, Judge Gingoyon issued another
Order supplementing the December 21, 2004 Order. It pointed out that the
earlier orders to the amount to be deposited by the government was based
on Section 2, Rule 67 when what should be applicable is RA 8974 and
therefore ordered that the amount of US$62,343,175.77 be released to
PIATCO instead of the amount in the December 21, 2004 Order.
On January 7, 2005, Judge Gingoyon issued another Order
directing the appointment of three (3) Commissioners to determine just
compensation for the NAIA 3 Complex.

257

Both Orders were questioned by the government as having been

issued with grave abuse of discretion.
ISSUES:
1. What law is applicable in this expropriation case: Rule 67 of the
of
Court
or
RA
8974?
2. If RA 8974 will be used, may the court used the provision of
Rule 67 on the 3 commissioners to determine just compensation.
Rules

HELD:
1.
Application of Rule 67 would violate the AGAN Doctrine which
provides that for the government to take over the said NAIA 3 facility, IT
HAS TO COMPENSATE RESPONDENT PIATCO AS BUILDER OF
THE SAID STRUCTURES. If Section 2, Rule 67 will be applied,
PIATCO would be enjoined from receiving the just compensation even if
the government takes over the NAIA 3 facility. It is sufficient that the
government deposits the amount equal to the assessed value of the
facilities. It would violate the proscription in the AGAN Decision that the
government must pay first the just compensation before taking over the
facilities.
So when shall Rule 67 be used in expropriation cases and when shall
RA 8974 be used?
In all National government projects or national infrastructure
projects, like those covered by the Build-Operate-Transfer, RA 8974
shall be followed. The rest, Rule 67 shall apply.
Differences between the two laws on expropriation:
a. Under Rule 67, the government merely deposits the assessed value of
the property subject of expropriation and can have a writ of possession
over the same while under RA 8974, the scheme of immediate payment
(100%) shall be followed.
b. Under Rule 67, there can be writ of possession even if the owner of the
property has not received a single centavo while under RA 8974, as in this
case, Writ of Possession may not be issued in favor of the government
UNTIL ACTUAL RECEIPT by PIATCO of the preferred value of just
compensation.
Upon issuance of the writ in favor of the government, however, it
could already exercise acts of ownership over the NAIA 3 facilities.

258
The just compensation to be paid by the government shall be
determined within 60 days from the finality of the decision based on
Section 4, RA 8974.
2
Rule 67 on the appointment of three (3) commissioners to
determine just compensation may be used since RA 8974 does not provide
for such procedure.
Just Compensation; Amount to be deposited in court before a Writ of
Possession may be issued by the court in favor of the government; When
to apply Rule 67 and when to apply RA No. 8974; Who owns the interest
of the initial amount deposited for the purpose of issuing writ of
possession
REPUBLIC OF THE PHILIPPINES VS. HOLY TRINITY REALTY
DEVELOPMENT CORPORATION, G.R. No. 172410, April 14, 2008
THE FACTS:
On 29 December 2000, petitioner Republic of the Philippines,
represented by the Toll Regulatory Board (TRB), filed with the RTC a
Consolidated Complaint for Expropriation against landowners whose
properties would be affected by the construction, rehabilitation and
expansion of the North Luzon Expressway. The suit was docketed as Civil
Case No. 869-M-2000 and raffled to Branch 85, Malolos, Bulacan.
Respondent Holy Trinity Realty and Development Corporation (HTRDC)
was one of the affected landowners.
On 18 March 2002, TRB filed an Urgent Ex-Parte Motion for the
issuance of a Writ of Possession, manifesting that it deposited a sufficient
amount to cover the payment of 100% of the zonal value of the affected
properties, in the total amount of P28,406,700.00, with the Land Bank of
the Philippines, South Harbor Branch (LBP-South Harbor), an authorized
government depository. TRB maintained that since it had already
complied with the provisions of Section 4 of Republic Act No. 8974184[5] in
relation to Section 2 of Rule 67 of the Rules of Court, the issuance of the
writ of possession becomes ministerial on the part of the RTC.
The RTC issued, on 19 March 2002, an Order for the Issuance of a
Writ of Possession.
On 3 March 2003, HTRDC filed with the RTC a Motion to
Withdraw Deposit, praying that the respondent or its duly authorized
representative be allowed to withdraw the amount of P22,968,000.00, out
184

259
of TRBs advance deposit of P28,406,700.00 with LBP-South Harbor,
including the interest which accrued thereon.
Thereafter, the RTC allowed the release of the principal amount
together with the interest to the respondent but on Motion for
Reconsideration of the TRB, it disallowed the withdrawal of the interest
reasoning out that the said issue will be included in the second stage of
expropriation, that is, the determination of just compensation.
The private respondent elevated the issue to the Court of Appeals
which ruled that the respondent is entitled to the interest by way of
accession.
Hence, this petition of the government before the Supreme Court.
I S S U E:
Who has the right over the interest of the amount deposited
representing the zonal value of the property sought to be expropriated?
The expropriator or the landowner?
HELD:
The petition is without merit.
The TRB claims that there are two stages185[11] in expropriation
proceedings, the determination of the authority to exercise eminent
domain and the determination of just compensation. The TRB argues that
it is only during the second stage when the court will appoint
commissioners and determine claims for entitlement to interest, citing
Land Bank of the Philippines v. Wycoco186[12] and National Power
Corporation v. Angas.187[13]
The TRB further points out that the expropriation account with
LBP-South Harbor is not in the name of HTRDC, but of DPWH. Thus,
the said expropriation account includes the compensation for the other
landowners named defendants in Civil Case No. 869-M-2000, and does
not exclusively belong to respondent.
The said argument is without merit because it failed to distinguish
between the expropriation procedures under Republic Act No. 8974 and
Rule 67 of the Rules of Court. Republic Act No. 8974 and Rule 67 of the
Rules of Court speak of different procedures, with the former specifically
governing expropriation proceedings for national government
infrastructure projects. Thus, in Republic v. Gingoyon,188[14] we held:
185
186
187
188

260

There are at least two crucial differences between the respective

procedures under Rep. Act No. 8974 and Rule 67. Under the statute, the
Government is required to make immediate payment to the property
owner upon the filing of the complaint to be entitled to a writ of
possession, whereas in Rule 67, the Government is required only to
make an initial deposit with an authorized government depositary.
Moreover, Rule 67 prescribes that the initial deposit be equivalent to the
assessed value of the property for purposes of taxation, unlike Rep. Act
No. 8974 which provides, as the relevant standard for initial
compensation, the market value of the property as stated in the tax
declaration or the current relevant zonal valuation of the Bureau of
Internal Revenue (BIR), whichever is higher, and the value of the
improvements and/or structures using the replacement cost method.
xxxx
Rule 67 outlines the procedure under which eminent domain may
be exercised by the Government. Yet by no means does it serve at present
as the solitary guideline through which the State may expropriate private
property. For example, Section 19 of the Local Government Code governs
as to the exercise by local government units of the power of eminent
domain through an enabling ordinance. And then there is Rep. Act No.
8974, which covers expropriation proceedings intended for national
government infrastructure projects.
Rep. Act No. 8974, which provides for a procedure eminently
more favorable to the property owner than Rule 67, inescapably applies in
instances when the national government expropriates property for
national government infrastructure projects. Thus, if expropriation is
engaged in by the national government for purposes other than national
infrastructure projects, the assessed value standard and the deposit mode
prescribed in Rule 67 continues to apply.
There is no question that the proceedings in this case deal with the
expropriation of properties intended for a national government
infrastructure project. Therefore, the RTC correctly applied the procedure
laid out in Republic Act No. 8974, by requiring the deposit of the amount
equivalent to 100% of the zonal value of the properties sought to be
expropriated before the issuance of a writ of possession in favor of the
Republic.
The controversy, though, arises not from the amount of the deposit,
but as to the ownership of the interest that had since accrued on the
deposited amount.
Whether the Court of Appeals was correct in holding that the
interest earned by the deposited amount in the expropriation account
would accrue to HRTDC by virtue of accession, hinges on the

261
determination of who actually owns the deposited amount, since, under
Article 440 of the Civil Code, the right of accession is conferred by
ownership of the principal property:
Art. 440. The ownership of property gives the right by accession to
everything which is produced thereby, or which is incorporated or attached
thereto, either naturally or artificially.
The principal property in the case at bar is part of the deposited
amount in the expropriation account of DPWH which pertains particularly
to HTRDC. Such amount, determined to be P22,968,000.00 of the
P28,406,700.00 total deposit, was already ordered by the RTC to be
released to HTRDC or its authorized representative. The Court of Appeals
further recognized that the deposit of the amount was already deemed a
constructive delivery thereof to HTRDC:
When the [herein petitioner] TRB deposited the money as advance
payment for the expropriated property with an authorized government
depositary bank for purposes of obtaining a writ of possession, it is
deemed to be a constructive delivery of the amount corresponding to the
100% zonal valuation of the expropriated property. Since [HTRDC] is
entitled thereto and indisputably the owner of the principal amount
deposited by [herein petitioner] TRB, conversely, the interest yield, as
accession, in a bank deposit should likewise pertain to the owner of the
money deposited.189[15]
Since the Court of Appeals found that the HTRDC is the owner of
the deposited amount, then the latter should also be entitled to the interest
which accrued thereon.
The deposit was made in order to comply with Section 4 of
Republic Act No. 8974, which requires nothing less than the immediate
payment of 100% of the value of the property, based on the current zonal
valuation of the BIR, to the property owner. Thus, going back to our
ruling in Republic v. Gingoyon190[16]:
It is the plain intent of Rep. Act No. 8974 to supersede the system
of deposit under Rule 67 with the scheme of immediate payment in
cases involving national government infrastructure projects.
The critical factor in the different modes of effecting delivery
which gives legal effect to the act is the actual intention to deliver on the
part of the party making such delivery.191[17] The intention of the TRB in
depositing such amount through DPWH was clearly to comply with the
requirement of immediate payment in Republic Act No. 8974, so that it
could already secure a writ of possession over the properties subject of the
189
190
191

262
expropriation and commence implementation of the project. In fact, TRB
did not object to HTRDCs Motion to Withdraw Deposit with the RTC, for
as long as HTRDC shows (1) that the property is free from any lien or
encumbrance and (2) that respondent is the absolute owner thereof.192[18]
A close scrutiny of TRBs arguments would further reveal that it
does not directly challenge the Court of Appeals determinative
pronouncement that the interest earned by the amount deposited in the
expropriation account accrues to HTRDC by virtue of accession. TRB
only asserts that HTRDC is entitled only to an amount equivalent to the
zonal value of the expropriated property, nothing more and nothing less.
We agree in TRBs statement since it is exactly how the amount of
the immediate payment shall be determined in accordance with Section 4
of Republic Act No. 8974, i.e., an amount equivalent to 100% of the zonal
value of the expropriated properties. However, TRB already complied
therewith by depositing the required amount in the expropriation account
of DPWH with LBP-South Harbor. By depositing the said amount, TRB
is already considered to have paid the same to HTRDC, and HTRDC
became the owner thereof. The amount earned interest after the deposit;
hence, the interest should pertain to the owner of the principal who is
already determined as HTRDC. The interest is paid by LBP-South Harbor
on the deposit, and the TRB cannot claim that it paid an amount more than
what it is required to do so by law.
Since the respondent is the owner of P22,968,000.00, it is entitled
by right of accession to the interest that had accrued to the said amount
only.
We are not persuaded by TRBs citation of National Power
Corporation v. Angas and Land Bank of the Philippines v. Wycoco, in
support of its argument that the issue on interest is merely part and parcel
of the determination of just compensation which should be determined in
the second stage of the proceedings only. We find that neither case is
applicable herein.
The issue in Angas is whether or not, in the computation of the
legal rate of interest on just compensation for expropriated lands, the
applicable law is Article 2209 of the Civil Code which prescribes a 6%
legal interest rate, or Central Bank Circular No. 416 which fixed the legal
rate at 12% per annum. We ruled in Angas that since the kind of interest
involved therein is interest by way of damages for delay in the payment
thereof, and not as earnings from loans or forbearances of money, Article
2209 of the Civil Code prescribing the 6% interest shall apply. In Wycoco,
on the other hand, we clarified that interests in the form of damages cannot
be applied where there is prompt and valid payment of just compensation.

192

263
The case at bar, however, does not involve interest as damages for
delay in payment of just compensation. It concerns interest earned by the
amount deposited in the expropriation account.
Under Section 4 of Republic Act No. 8974, the implementing
agency of the government pays just compensation twice: (1) immediately
upon the filing of the complaint, where the amount to be paid is 100% of
the value of the property based on the current relevant zonal valuation of
the BIR (initial payment); and (2) when the decision of the court in the
determination of just compensation becomes final and executory, where
the implementing agency shall pay the owner the difference between the
amount already paid and the just compensation as determined by the court
(final payment)
As a final note, TRB does not object to HTRDCs withdrawal of
the amount of P22,968,000.00 from the expropriation account, provided
that it is able to show (1) that the property is free from any lien or
encumbrance and (2) that it is the absolute owner thereof. The said
conditions do not put in abeyance the constructive delivery of the said
amount to HTRDC pending the latters compliance therewith. Article
1187 of the Civil Code provides that the effects of a conditional
obligation to give, once the condition has been fulfilled, shall retroact to
the day of the constitution of the obligation. Hence, when HTRDC
complied with the given conditions, as determined by the RTC in its
Orderdated 21 April 2003, the effects of the constructive delivery
retroacted to the actual date of the deposit of the amount in the
expropriation account of DPWH.
BIGLANG-AWA VS. JUDGE BACALLA, 354 SCRA 562
PURSUANT TO SECTION 2, RULE 67 OF THE 1997 RULES
OF CIVIL PROCEDURE AND THE DOCTRINE LAID DOWN IN
THE ROBERN DEVELOPMENT CASE, THE ONLY REQUISITES
FOR THE IMMEDIATE ENTRY BY THE GOVERNMENT IN
EXPROPRIATION CASES ARE:
a. the filing of a complaint for expropriation sufficient in form and
substance; and
b. the making of a deposit equivalent to the ASSESSED VALUE OF
THE PROPERTY SUBJECT TO EXPROPRIATION.
The owners of the expropriated land are entitled to legal interest on the
compensation eventually adjudged from the date the condemnor takes
possession of the land until the full compensation is paid to them or
deposited in court.

264
Requisites before immediate possession or writ of possession may be issued
in expropriation cases, involving local government units as the expropriating
agency:
1. Complaint sufficient in form and substance; and
2. Payment of 15% of the Market value as appearing in the latest Tax
Declaration.
THE CITY OF ILOILO VS. JUDGE LEGASPI, RTC 22, ILOILO
CITY, 444 SCRA 269
Requisites before the expropriator is allowed immediate entry on the
property subject of expropriation if the expropriator is a local government
unit.
The expropriator may immediately enter the property subject of
expropriation proceedings if the following requisites are present:
1.

the complaint for expropriation filed in court

is sufficient in form and substance; and
2.
the expropriator must deposit the amount
equivalent to 15% of the fair market value of the property to be
expropriated based on its current tax declaration.
But if the government fails to use the
property expropriated for the purpose for
which it was intended, the landowner has
the right to buy-back the same.
MACTAN-CEBU
INTERNATIONAL
AIRPORT
AUTHORITY and AIR TRANSPORTATION OFFICE
vs. BERNARDO LOZADA, JR., ET AL., G.R. No.
176625, February 25, 2010
NACHURA, J.:
Subject of this case is Lot No. 88-SWO-25042 (Lot No. 88), with an area
of 1,017 square meters, more or less, located in Lahug, Cebu City. Its original
owner was Anastacio Deiparine when the same was subject to expropriation
proceedings, initiated by the Republic of the Philippines (Republic), represented
by the then Civil Aeronautics Administration (CAA), for the expansion and
improvement of the Lahug Airport. The case was filed with the then Court of
First Instance of Cebu, Third Branch, and docketed as Civil Case No. R-1881.

265
As early as 1947, the lots were already occupied by the U.S. Army. They
were turned over to the Surplus Property Commission, the Bureau of Aeronautics,
the National Airport Corporation and then to the CAA.
During the pendency of the expropriation proceedings, respondent
Bernardo L. Lozada, Sr. acquired Lot No. 88 from Deiparine. Consequently,
Transfer Certificate of Title (TCT) No. 9045 was issued in Lozadas name.
On December 29, 1961, the trial court rendered judgment in favor of the
Republic and ordered the latter to pay Lozada the fair market value of Lot No. 88,
adjudged at P3.00 per square meter, with consequential damages by way of legal
interest computed from November 16, 1947the time when the lot was first
occupied by the airport. Lozada received the amount of P3,018.00 by way of
payment.
The affected landowners appealed. Pending appeal, the Air Transportation
Office (ATO), formerly CAA, proposed a compromise settlement whereby the
owners of the lots affected by the expropriation proceedings would either not
appeal or withdraw their respective appeals in consideration of a commitment that
the expropriated lots would be resold at the price they were expropriated in the
event that the ATO would abandon the Lahug Airport, pursuant to an established
policy involving similar cases. Because of this promise, Lozada did not pursue
his appeal. Thereafter, Lot No. 88 was transferred and registered in the name of
the Republic under TCT No. 25057.
The projected improvement and expansion plan of the old Lahug Airport,
however, was not pursued.
Lozada, with the other landowners, contacted then CAA Director Vicente
Rivera, Jr., requesting to repurchase the lots, as per previous agreement. The
CAA replied that there might still be a need for the Lahug Airport to be used as an
emergency DC-3 airport. It reiterated, however, the assurance that should this
Office dispose and resell the properties which may be found to be no longer
necessary as an airport, then the policy of this Office is to give priority to the
former owners subject to the approval of the President.
On November 29, 1989, then President Corazon C. Aquino issued a
Memorandum to the Department of Transportation, directing the transfer of
general aviation operations of the Lahug Airport to the Mactan International
Airport before the end of 1990 and, upon such transfer, the closure of the Lahug
Airport.
Sometime in 1990, the Congress of the Philippines passed Republic Act
(R.A.) No. 6958, entitled An Act Creating the Mactan-Cebu International Airport
Authority, Transferring Existing Assets of the Mactan International Airport and
the Lahug Airport to the Authority, Vesting the Authority with Power to
Administer and Operate the Mactan International Airport and the Lahug Airport,
and For Other Purposes.

266

From the date of the institution of the expropriation proceedings up to the

present, the public purpose of the said expropriation (expansion of the airport)
was never actually initiated, realized, or implemented. Instead, the old airport
was converted into a commercial complex. Lot No. 88 became the site of a jail
known as Bagong Buhay Rehabilitation Complex, while a portion thereof was
occupied by squatters. The old airport was converted into what is now known as
the Ayala I.T. Park, a commercial area.
Thus, on June 4, 1996, petitioners initiated a complaint for the recovery of
possession and reconveyance of ownership of Lot No. 88. The case was docketed
as Civil Case No. CEB-18823 and was raffled to the Regional Trial Court (RTC),
Branch 57, Cebu City.
In their Answer, petitioners asked for the immediate dismissal of the
complaint. They specifically denied that the Government had made assurances to
reconvey Lot No. 88 to respondents in the event that the property would no longer
be needed for airport operations. Petitioners instead asserted that the judgment of
condemnation was unconditional, and respondents were, therefore, not entitled to
recover the expropriated property notwithstanding non-use or abandonment
thereof.
After pretrial, but before trial on the merits, the parties stipulated on the
following set of facts:
(1)

The lot involved is Lot No. 88-SWO-25042 of the Banilad

Estate, situated in the City of Cebu, containing an area of
One Thousand Seventeen (1,017) square meters, more or
less;

(2)

The property was expropriated among several other

properties in Lahug in favor of the Republic of the
Philippines by virtue of a Decision dated December 29, 1961
of the CFI of Cebu in Civil Case No. R-1881;

(3)

The public purpose for which the property was expropriated

was for the purpose of the Lahug Airport;

(4)

After the expansion, the property was transferred in the name

of MCIAA; [and]

(5)

On November 29, 1989, then President Corazon C. Aquino

directed
the Department
of Transportation
and
Communication to transfer general aviation operations of the
Lahug Airport to the Mactan-Cebu International Airport
Authority and to close the Lahug Airport after such transfer.

267
On October 22, 1999, the RTC rendered its Decision, disposing as follows:
WHEREFORE, in the light of the foregoing, the Court
hereby renders judgment in favor of the plaintiffs, Bernardo L.
Lozada, Sr., and the heirs of Rosario Mercado, namely, Vicente M.
Lozada, Marcia L. Godinez, Virginia L. Flores, Bernardo M.
Lozada, Jr., Dolores L. Gacasan, Socorro L. Cafaro and Rosario M.
Lozada, represented by their attorney-in-fact Marcia Lozada
Godinez, and against defendants Cebu-Mactan International
Airport Authority (MCIAA) and Air Transportation Office (ATO):
1. ordering MCIAA and ATO to restore to plaintiffs the
possession and ownership of their land, Lot No. 88 Psd-821
(SWO-23803), upon payment of the expropriation price to
plaintiffs; and
2. ordering the Register of Deeds to effect the transfer of
the Certificate of Title from defendant[s] to plaintiffs on Lot No.
[88], cancelling TCT No. 20357 in the name of defendant MCIAA
and to issue a new title on the same lot in the name of Bernardo L.
Lozada, Sr. and the heirs of Rosario Mercado, namely: Vicente M.
Lozada, Mario M. Lozada, Marcia L. Godinez, Virginia L. Flores,
Bernardo M. Lozada, Jr., Dolores L. Gacasan, Socorro L. Cafaro
and Rosario M. Lozada.
No pronouncement as to costs.
Aggrieved, petitioners interposed an appeal to the CA. After the filing of
the necessary appellate briefs, the CA rendered its assailed Decision dated
February 28, 2006, denying petitioners appeal and affirming in toto the Decision
of the RTC, Branch 57, Cebu City. Petitioners motion for reconsideration was,
likewise, denied in the questioned CA Resolution dated February 7, 2007.
Hence, this petition arguing that: (1) the respondents utterly failed to prove
that there was a repurchase agreement or compromise settlement between them
and the Government; (2) the judgment in Civil Case No. R-1881 was absolute and
unconditional, giving title in fee simple to the Republic; and (3) the respondents
claim of verbal assurances from government officials violates the Statute of
Frauds.
The petition should be denied.
Petitioners anchor their claim to the controverted property on the
supposition that the Decision in the pertinent expropriation proceedings did not
provide for the condition that should the intended use of Lot No. 88 for the
expansion of the Lahug Airport be aborted or abandoned, the property would
revert to respondents, being its former owners. Petitioners cite, in support of this
position, Fery v. Municipality of Cabanatuan, which declared that the

268
Government acquires only such rights in expropriated parcels of land as may be
allowed by the character of its title over the properties
If x x x land is expropriated for a particular purpose, with the
condition that when that purpose is ended or abandoned the
property shall return to its former owner, then, of course, when the
purpose is terminated or abandoned the former owner reacquires
the property so expropriated. If x x x land is expropriated for a
public street and the expropriation is granted upon condition that
the city can only use it for a public street, then, of course, when the
city abandons its use as a public street, it returns to the former
owner, unless there is some statutory provision to the contrary. x x
x. If, upon the contrary, however, the decree of expropriation gives
to the entity a fee simple title, then, of course, the land becomes the
absolute property of the expropriator, whether it be the State, a
province, or municipality, and in that case the non-user does not
have the effect of defeating the title acquired by the expropriation
proceedings. x x x.
When land has been acquired for public use in fee simple,
unconditionally, either by the exercise of eminent domain or by
purchase, the former owner retains no right in the land, and the
public use may be abandoned, or the land may be devoted to a
different use, without any impairment of the estate or title
acquired, or any reversion to the former owner. x x x.
Contrary to the stance of petitioners, this Court had ruled otherwise in
Heirs of Timoteo Moreno and Maria Rotea v. Mactan-Cebu International Airport
Authority, thus
Moreover, respondent MCIAA has brought to our attention
a significant and telling portion in the Decision in Civil Case No.
R-1881 validating our discernment that the expropriation by the
predecessors of respondent was ordered under the running
impression that Lahug Airport would continue in operation
As for the public purpose of the
expropriation proceeding, it cannot now be
doubted. Although Mactan Airport is being
constructed, it does not take away the actual
usefulness and importance of the Lahug Airport: it
is handling the air traffic both civilian and military.
From it aircrafts fly to Mindanao and Visayas and
pass thru it on their flights to the North and Manila.
Then, no evidence was adduced to show how soon
is the Mactan Airport to be placed in operation and
whether the Lahug Airport will be closed
immediately thereafter. It is up to the other
departments of the Government to determine said

269
matters. The Court cannot substitute its judgment
for those of the said departments or agencies. In
the absence of such showing, the Court will
presume that the Lahug Airport will continue to be
in operation (emphasis supplied).
While in the trial in Civil Case No. R-1881 [we] could have
simply acknowledged the presence of public purpose for the
exercise of eminent domain regardless of the survival of Lahug
Airport, the trial court in its Decision chose not to do so but instead
prefixed its finding of public purpose upon its understanding that
Lahug Airport will continue to be in operation. Verily, these
meaningful statements in the body of the Decision warrant the
conclusion that the expropriated properties would remain to be so
until it was confirmed that Lahug Airport was no longer in
operation. This inference further implies two (2) things: (a) after
the Lahug Airport ceased its undertaking as such and the
expropriated lots were not being used for any airport expansion
project, the rights vis--vis the expropriated Lots Nos. 916 and 920
as between the State and their former owners, petitioners herein,
must be equitably adjusted; and (b) the foregoing unmistakable
declarations in the body of the Decision should merge with and
become an intrinsic part of the fallo thereof which under the
premises is clearly inadequate since the dispositive portion is not in
accord with the findings as contained in the body thereof.
Indeed, the Decision in Civil Case No. R-1881 should be read in its entirety,
wherein it is apparent that the acquisition by the Republic of the expropriated lots
was subject to the condition that the Lahug Airport would continue its operation.
The condition not having materialized because the airport had been abandoned,
the former owner should then be allowed to reacquire the expropriated property.
On this note, we take this opportunity to revisit our ruling in Fery, which
involved an expropriation suit commenced upon parcels of land to be used as a
site for a public market. Instead of putting up a public market, respondent
Cabanatuan constructed residential houses for lease on the area. Claiming that the
municipality lost its right to the property taken since it did not pursue its public
purpose, petitioner Juan Fery, the former owner of the lots expropriated, sought to
recover his properties. However, as he had admitted that, in 1915, respondent
Cabanatuan acquired a fee simple title to the lands in question, judgment was
rendered in favor of the municipality, following American jurisprudence,
particularly City of Fort Wayne v. Lake Shore & M.S. RY. Co., McConihay v.
Theodore Wright, and Reichling v. Covington Lumber Co., all uniformly holding
that the transfer to a third party of the expropriated real property, which
necessarily resulted in the abandonment of the particular public purpose for which
the property was taken, is not a ground for the recovery of the same by its
previous owner, the title of the expropriating agency being one of fee simple.

270
Obviously, Fery was not decided pursuant to our now sacredly held
constitutional right that private property shall not be taken for public use without
just compensation. It is well settled that the taking of private property by the
Governments power of eminent domain is subject to two mandatory
requirements: (1) that it is for a particular public purpose; and (2) that just
compensation be paid to the property owner. These requirements partake of the
nature of implied conditions that should be complied with to enable the
condemnor to keep the property expropriated.
More particularly, with respect to the element of public use, the
expropriator should commit to use the property pursuant to the purpose stated in
the petition for expropriation filed, failing which, it should file another petition for
the new purpose. If not, it is then incumbent upon the expropriator to return the
said property to its private owner, if the latter desires to reacquire the same.
Otherwise, the judgment of expropriation suffers an intrinsic flaw, as it would
lack one indispensable element for the proper exercise of the power of eminent
domain, namely, the particular public purpose for which the property will be
devoted. Accordingly, the private property owner would be denied due process of
law, and the judgment would violate the property owners right to justice,
fairness, and equity.
In light of these premises, we now expressly hold that the taking of
private property, consequent to the Governments exercise of its power of
eminent domain, is always subject to the condition that the property be
devoted to the specific public purpose for which it was taken. Corollarily, if
this particular purpose or intent is not initiated or not at all pursued, and is
peremptorily abandoned, then the former owners, if they so desire, may seek
the reversion of the property, subject to the return of the amount of just
compensation received. In such a case, the exercise of the power of eminent
domain has become improper for lack of the required factual justification.
On the matter of the repurchase price, while petitioners are obliged to
reconvey Lot No. 88 to respondents, the latter must return to the former what they
received as just compensation for the expropriation of the property, plus legal
interest to be computed from default, which in this case runs from the time
petitioners comply with their obligation to respondents.
Respondents must likewise pay petitioners the necessary expenses they may
have incurred in maintaining Lot No. 88, as well as the monetary value of their
services in managing it to the extent that respondents were benefited thereby.
GABATIN VS. LAND BANK OF THE PHILIPPINES, 444 SCRA 176
What is the basis of the just compensation for expropriation
proceedings in connection with the agrarian reform program of the
government.
Held:

271

The taking of private lands under the agrarian reform program of

the government partakes of the nature of an expropriation proceedings. As
such, in computing the just compensation, it is the value of the land at
the time of the taking, not at the time of the rendition of the judgment,
which should be taken into consideration.
BANK OF THE PHILIPPINE ISLANDS VS. COURT OF APPEALS,
441 SCRA 637
Just compensation in expropriation cases; value of the property
when?
Just compensation is defined as the full and fair equivalent of the
property taken from its owner by the expropriator. The measure is not the
takers gain, but the owners loss. Market value is that sum of money
which a person desirous but not compelled to buy, and an owner willing
but not compelled to sell, would agree on as a price to be given and
received therefore.
The just compensation is determined as of the date of taking of the
property or the filing of the complaint for expropriation, WHICHEVER
COMES FIRST.
4. Basis of just compensation
Read:
a. NPC vs. Jocson, February 25, 1992
a-1. Ansaldo vs. Tantuico, Aug. 3, 1990
b. Mun. of Makati vs. CA, Oct. 1, 1990
c. Reublic vs. IAC, 185 SCRA 572
d. Mun. of Talisay vs. Ramirez, 183 SCRA 528
e. NPC vs. CA, 129 SCRA 665
f. Maddumba vs. GSIS, 182 SCRA 281
Read also:
1. Meaning of just compensation in eminent domain
29 SCRA 868

proceedings,

Basis of just compensation (Exceptional case)

BERKENKOTTER, INC. VS. COURT OF APPEALS AND
REPUBLIC OF THE PHILIPPINES, December 14, 1992
Cruz, J.

272

Facts:
1. On June 18, 1982, Vicente Viray, then President of Apolinario Apacible
School of Fisheries, a government institution in Nasugbu, Batangas, sent
the petitioner a written offer to buy the property of the latter with an area
of 10,640 square meters for its 5-year expansion program;
2. That the petitioner expressed willingness to sell at P50.00 per square
meter in its reply;
3. Viray then requested the Office of the Provincial Assessor of the
Province of Batangas to appraise the land and the latter fixed its market
value at P32.00 per square meter;
4. Viray then wrote the petitioner and expressed willingness to buy the
latter's property at P32.00 per square meter. The petitioner, however, stuck
to its original valuation. Later on, it said that its property had in fact
appreciated to as much as P100.00 per square meter;
5. On October 28, 1983, the Republic of the Philippines filed a complaint
for the expropriation of the petitioner's property and invoked the
assessment made by the Provincial Appraisal Committee of the Provincial
Assessor of Batangas in the amount of P32.00. The government likewise
sought immediate possession of the property upon deposit of 10% of the
total assessment in accordance with PD 48;
6. Berkenkotter originally questioned the purpose of the expropriation but
later abandoned this objection and concentrated only on what it called the
"underappraisal" of the subject land;
7. The RTC then appointed a panel of commissioners in accordance with
Rule 67, ection 5, of the Rules of Court, to determine the just
compensation to be paid for the land;
8. On September 23, 1985, the panel of commissioners submitted its
report to the trial court and pegged the market value at P85.00 per
square meter;
9. The Republic of the Philippines objected and pointed to three (3)
contracts of sale executed by the petitioner in 1985 whereby it sold three
(3) tracts of land similar in topography and adjacent to the property in
question for the unit price of only P19.18 per square meter;
10. The court directed the commissioners to convene anew and to receive
additional evidence. However, in its second report dated April 1, 1987,
the panel reiterated its original recommendation of P85.00/sq. m. or a
total of P904,400.00 for the entire area sought to be expropriated. The trial
court acting on this recommendation rendered judgment requiring the

273
Republic to pay the petitioner the amount of P904,400.00 for the entire
area sought to be expropriated;
11. The government appealed the trial court's decision to the Court of
Appeals which rendered a decision REVERSING THE LOWER
COURT'S DECISION and declaring that the fair market value which
should be the basis in computing the amount to be paid by the
government to the petitioner shall be P19.18, the market value according
set by the petitioner if we follow the three (3) deeds of sale it executed in
favor of three (3) different individuals;
12. The petitioner was therefore constrained to file this instant petition
claiming that the Court of Appeals erred in holding that P19.18 per
square meter should be the basis of the computation for the just
compensation of its property because:
a. Viray even offered the amount of P32.00 per squaremeter as the fair
market value;
b. that P32.00 per square meter was the appraised value made by the
Office of the Provincial Assessor of Batangas; and
c. the complaint itself prays that the market value be pegged at P32.00
per square meter.
Issue:
WHAT SHOULD BE THE BASIS IN THE COMPUTATION
OF THE JUST COMPENSATION: P32.00/SQ. M. IN ACCORANCE
WITH THE APPRAISAL OF THE PROVINCIAL ASSESSOR;
P100.00/SQ.M. AS CLAIMED BY THE OWNER; P85.00/SQ. M. AS
RECOMMENDED BY
THE BOARD OF COMMISSIONERS
APPOINTED BY THE COURT TO EVALUATE THE SAME, OR P19.18
PER SQUARE METER WHICH WAS THE SELLING PRICE IN AN
ADJACENT LOT SOLD BY THE PETITIONER TO THREE PRIVATE
INDIVIDUALS.
Held.
The basis in the computation of just compensation shall be
P19.18 per square meter or the price which the petitioner sold its other
lots to other individuals.
This is so because there is no showing that the petitioner had any
special reason for granting each of the individual vendees the
extraordinary discount amounting to as much as 75% of its claimed real
value of the land. To all appearances, they were ordinary buyers who
bought the land for their own private purposes only and not for the
public purpose invoked by the government.

274

The petitioner's claim that the value as appearing in the deeds of

sale in the three other parcels is not a reliable index of just
compensation "because owners usually undervalue the selling price of the
property to lower the expenses they would have to pay for capital gains
tax and documentary stamps tax" is practically an admission that it did
not indicate the actual consideration in the three transactions where it
was made to appear that the price per square meter was only P19.18. If
this was the purpose of the petitioner when it executed the 3 deeds of sale,
then IT IS SURELY HOIST NOW BY ITS OWN PETARD. AND
RIGHTLY SO, FOR IT CANNOT BE ALLOWED TO PROFIT FROM
ITS OWN DECEPTION AND CLAIM THAT THE SUBJECT
PROPERTY SHOULD BE ASSESSED AT THE HIGHER RATE IT
CLANDESTINELY AGREED UPON WITH THE BUYERS.
The Court is disappointed that the petitioner should demand a
higher price from the republic, which needs the land for a public purpose,
when it was willing to accept less from the three individual buyers who
had only their private interests to serve.
The fact that the petitioner sold the 3 other parcels of land at
P19.18 per square meter which are admittedly of the same topography as
that subject of this case, it impliedly admitted that the price for the latter
should be the same as the former. This rule of consistency is best
expressed in the familiar saying, surely not unknown to the petitioner,
THAT WHAT IS SAUCE FOR THE GOOSE IS ALSO SAUCE FOR
THE GANDER.
Just compensation is defined as the full and fair equivalent of the
proerty sought to be expropriated (Association of Small Landowners vs.
Secretary of Agrarian Reform, 175 SCRA 378). The measure is not the
taker's gain but the owner's loss. he compensation, to be just, must be fair
not only to the owner but also to the taker.
To determine just compensation, the trial court should first
ascertain the market value of the property, to which should be added the
consequential benefits which may arise from the expropriation.
The market value of the property is the price that may be agreed
upon by the parties willing but not compelled to enter into a contract
of sale.
Among the factors to be considered in arriving at the fair
market value are:
1. cost of acquisition;
2. the current value of like proerties;
3. its actual or potential uses;
4. particular case of lands;

275
5. their size, shape, location; and
6. the tax declarations thereon.
Finally, note that as held in the case of Republic vs. Santos, 141
SCRA 30, the market value as recommended by the board of
commissioners appointed by the court were at best only ADVISORY
AND PERSUASIVE AND BY NO MEANS FINAL OR BINDING.
2. NHA vs. Reyes, 123 SCRA 245
3. Manotok vs. CA, May 21,1987
4. EPZA vs. Dulay, April 29,l987
5. Lagunzad vs. CA, 154 SCRA 199
When it is considered for "public use":
6. Sumulong vs. Guererro, 154 SCRA 461
7. Republic vs. CA, 154 SCRA 428
8.Cosculluela vs. CA, 164 SCRA 393
5. Requisite of "taking" in eminent domain cases
Read:
1. Rep. vs. Castellvi, 58 SCRA 336
a.
b.
c.
d.
e.

Requisites of taking:
the expropriator must enter the property;
the entrance must not be for just a momentary period;
the entry must be under warrant of color or title;
the property must be devoted for public use; and
the owner must be ousted from beneficial use of his land.
2. Ignacio vs. Guererro, 150 SCRA 369
3. Garcia vs. CA, 102 SCRA 597
6. Not a valid exercise of eminent domain
Read:
1. City of Manila vs. Chinese Community, 40
Phil. 349 ( A
private property which is devoted to public use may not be expropriated
for another public purpose.)

2. De Knecht vs. Bautista, 100 SCRA 660

REPUBLIC OF THE PHILIPPINES VS. CRISTINA DE KNECHT
AND THE COURT OF APPEALS, G.R. NO. 87335, February 12,
1989

276

Expropriation
Gancayco, J.
Facts:
1. On February 20, 1979, the Rep. of the Philippines initiated an
expropriation proceedings against the owners of the houses standing along
Fernando Rein-Del Pan streets, among them Cristina de Knecht together
with Concepcion Cabarrus, and some other fifteen defendants in Civil
Case No. 7001-P;
2. In June, 1979, the Republic of the Philippines prayed for the issuance of
a writ of possession of the property to be expropriated on the ground that it
had already deposited with the PNB 10% of the amount of compensation
stated in the complaint; that on June 14, 1979, the Lower Court issued a
writ of possession authorizing the Republic to enter into the properties
condemned and created a committee to determine just compensation;
3. On July 16, 1979, De Knecht went to the Supreme Court on a petition
for certiorari and prohibition directed against the June 14, 1979 order of
the lower court;
4. On October 30, 1980, the Supreme Court rendered its decision granting
the petition for certiorari and prohibition and directing that the Order of
the respondent Judge dated June 14, 1979 be SET ASIDE and the
respondent Judge is permanently enjoined from taking any further action
on Civil Case No. 7001-P;
5. On August 8, 1981, the defendants in Civil Case No. 7001- moved for
the dismissal of said case since the decision of the Supreme Court is
already final;
6. On September 2, 1983, the Republic moved for the dismissal of the case
due to the enactment of BP 340 expropriating the same properties for the
same purpose. On the same date, the Court dismissed the case. The
defendants moved for a reconsideration which the Court denied;
7. De Knecht appealed the Order dismissing the case to the Court of
Appeals who on December 28, 1988 issued its decision setting aside the
Order appealed from and dismissing the expropriation proceedings before
the lower court on the ground that the choice of the above-mentioned
streets as the line through which the EDSA should be extended is arbitrary
and should not receive judicial approval;
8. The Republic of the Philippines filed a Petition for Review with the
Supreme Court.

277
Issue:
Whether or not the legislature could still pass a law expropriating the
lots of the private respondents despite the existence of a final decision of
the Supreme Court which held that choice of their lot to be used as an
extension of EDSA is arbitrary?
Held:
It is true that there is already a final decision of the Supreme Court to
the effect that the choice of the Fernando Rein-Del Pan Streets is arbitrary
and should not receive judicial approval. However, it is equally true that
the Constitution and our laws may expropriate private properties after the
payment of just compensation. When on February 17, 1983, the Batasang
Pambansa passed BP 340 expropriating the same properties for the same
purpose, IT APPEARS THAT THE SAME WAS BASED ON
SUPERVENING EVENTS THAT OCCURRED after the decision of the
SC in De Knecht vs. Bautista in 1980. The social impact factor which
persuaded the Court to consider this extension has disappeared because of
the fact that the residents of the area have been relocated and duly
compensated and only DE KNECHT now is left while her property is only
about 5% of the area to be expropriated. The Republic could continue it
expropriation proceedings considering the supervening events after the
decision was rendered.
BP Bilang 340 THEREFORE EFFECTIVELY SUPERSEDED THE
AFORESAID FINAL AND EXECUTORY DECISION OF THE
SUPREME COURT. X x x THE COURT AGREES IN THE WISDOM
AND NECESSITY OF ENACTING BP 340. THUS THE ANTERIOR
DECISION OF THIS COURT MUST YIELD TO THIS SUBSEQUENT
LEGISLATIVE FIAT.
************************
Cruz, J., concurring
Supervening events have changed the factual basis of the SC's decision
to justify the subsequent enactment of the statute. If we are sustaining the
legislation, it is not because we concede that the lawmakers can nullify the
findings of the Court in the exercise of its discretion. It is simply because
we ourselves have found that under the changed situation, the present
expropriation is no longer arbitrary.
I MUST ADD THAT THIS DECISION IS NOT A REVERSAL OF
THE ORIGINAL DE KNECHT CASE, WHICH WAS DECIDED
UNDER A DIFFERENT SET OF FACTS.
3. REPUBLIC OF THE PHILIPPINES VS. CRISTINA DE KNECHT
AND THE COURT OF APPEALS, G.R. NO. 87335, February 12, 1989

278

3-a. Limitations of the power of expropriation, 3

SCRA 706

7. When shall we base the computation of the value of the property

expropriated: at the time of taking or at the time of the institution of the
expropriation proceedings?
8. Eminent domain cases, in general
Read:
1. City of Baguio vs. NAWASA, 106 Phil. 144
2. Garcia vs. CA, 102 SCRA 620
3. Municipality of Daet vs. CA, 93 SCRA 503
4. Salas vs. Jarencio, 46 SCRA 734
5. Arce vs. Genito, Feb. 27, 1976
6. Guido vs. RPA, 84 Phil. 847
7. Rep. vs. Baylosis, 96 Phil. 461
8. Mataas na Lupa vs. Dimayuga, 130 SCRA 30
9. San Diego vs. Valdellon, 80 SCRA 305
10. Haguisan vs. Emilia, 131 SCRA 517
11. Heirs of Ardona vs. Reyes, 125 SCRA 220
12. Commissioner vs. Burgos, March 31,1980
13. Republic vs. Juan, 92 SCRA 29
CHAPTER XI - THE NON-IMPAIRMENT CLAUSE
Section 10. No law impairing the
obligation of contracts shall be passed.
1. Read:
1. Kabiling, et al., vs. NHA, December 18,l987
2. Clements vs. Nolting, 42 Phil. 702
3. Co vs. PNB, 114 SCRA 842
4. Lozano vs. Martinez,146 SCRA 323
5. Rutter vs. Esteban,93 Phil. 68
6. Ilusorio vs. CAR, 17 SCRA 25
7. Ortigas vs. Feati Bank, 94 SCRA 533
8. Ganzon vs. Insierto, 123 SCRA 713
9. Del Rosario vs. De los Santos, March 21, 1968
10. Abella vs. NLRC, 152 SCRA 140
11. PVBEU vs. PVB, 189 SCRA 14
Section 11. Free access to the courts and
quasi-judicial bodies and adequate legal
assistance shall not be denied to any person
by reason of poverty.

279

CHAPTER XII - RIGHTS DURING

CUSTODIAL INVESTIGATION
Section 12. (1) Any person under
investigation for the commission of an
offense shall have the right to be informed
of his right to remain silent and to have
competent and independent counsel
preferably of his own choice. If the person
cannot afford the services of counsel, he
must be provided with one. These rights
cannot be waived except in writing and in
the presence of counsel.
(2) No torture, force, violence,
threat, intimidation or any other means
which vitiate the free will shall be used
against him. Secret detention places,
solitary, incommunicado, or other similar
forms of detention are prohibited.
(3) Any confession or admission
obtained in violation of this or Section 17
hereof shall be inadmissible in evidence
against him.
Rights of a person under custodial detention for one suspected
or arrested as a terrorist.
NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism
Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on
July 15, 2007 (This Law shall be automatically suspended one (1) month
before and two (2) months after the holding of any election)
Section 21. Rights of a person under custodial detention.- The
moment a person charged with or suspected of the crime of terrorism or
the crime of conspiracy to commit terrorism is apprehended or arrested
and detained, he shall forthwith be informed by the arresting police or law
enforcement officers to whose custody the person concerned is brought, of
his or her right:
1. to be informed of the nature and cause of his arrest, to remain silent and to
have competent and independent counsel preferably of his own choice. If
the person cannot afford the services of counsel of his or her choice, the
police or law enforcement officers concerned shall immediately contact
the free legal assistance unit of the IBP or the Public attorneys office
(PAO). It shall be the duty of the free legal assistance unit of the IBP or

280

2.
3.
4.
5.

the PAOs thus contacted to immediately visit the person detained and
provide him with legal assistance. These rights cannot be waived except in
writing and in the presence of the counsel of choice;
informed of the cause or causes of his detention in the presence of his
legal counsel;
allowed to communicate freely with his legal counsel and to confer with
them at any time without restriction;
allowed to communicate freely and privately without restrictions with the
members of his family or with his nearest relatives and be visited by them;
and
allowed freely to avail of the services of a physician or physicians of
choice.
Section 23. Requirement for an official custodial logbook and
its contents.- The police or other law enforcement custodial unit in whose
care and control the person charged with or suspected of the crime of
terrorism or the crime of conspiracy to commit terrorism has been placed
under custodial arrest and detention shall keep a securely and orderly
maintained official logbook, which is hereby declared as public document
and opened and made available for inspection and scrutiny of the lawyer
or lawyers of the person under custody or any member of his family or
relative by consanguinity within the fourth civil degree or his physician at
any time of the day without any form of restriction. The logbook shall
contain a clear and concise record of:

1.
2.

name, description, and address of the detained person;

date and exact time of his initial admission for custodial arrest and
detention;
3.
the name and address of the physician/s who examined him physically
and medically;
4.
the state of his health and his physical condition a the time of his initial
admission for custodial detention;
5.
the date and time of each removal of the detained person from his cell
for interrogation or for any purpose;
6.
the date and time of his return to his cell;
7.
name and address of the physician who examined him physically and
medically;
8.
summary of the physical and medical findings after each interrogation;
9.
names and addresses of the members of his family and relatives;
10.
names and addresses of the persons who visited him;
11.
date and time of such visits;
12.
date and time when the detained person requested to communicate or
confer with his lawyer;
13.
the date and time of visits by his legal counsel and the date and time
of departure; and
14.
all other important events bearing on all relevant details regarding the
treatment of the detained person while under custodial arrest or detention.

281
Section 24. No torture or coercion in Investigation and
interrogation. No threat, intimidation, or coercion, and no act which will
inflict any form of physical pain or torment, or mental, moral, or
psychological pressure on the detained person which shall vitiate his free
will shall be employed in his investigation and interrogation; otherwise,
the evidence obtained from said detained person shall be in its entirety,
absolutely not admissible and usable as evidence in any judicial, quasijudicial, legislative, or administrative investigation, inquiry, proceeding or
hearing.
The summary of the rights of an accused
during custodial investigation (from the
time of arrest) under the Constitution,
laws and jurisprudence.
THE PEOPLE OF THE PHILIPPINES VS. MAHINAY, G.R. No.
122485, February 1, 1999
Per Curiam:
Considering the heavy penalty of death and in order to ensure
that evidence against an accused were obtained through lawful means,
the Court, as guardian of the rights of the people, lays down the
PROCEDURE, GUIDELINES, AND DUTIES WHICH THE
ARRESTING, DETAINING, INVITING OR INVESTIGATING
OFFICER OR HIS COMPANIONS MUST OBSERVE AT THE TIME OF
MAKING THE ARREST AND AGAIN AT AND DURING THE TIME
OF THE CUSTODIAL INVESTIGATION OR INTERROGATION IN
ACCORDANCE with the Constitution, jurisprudence and Republic Act
No. 7438. It is high time to educate our law enforcement agencies who
neglect either by ignorance or indifference the so-called Miranda
rights which had become insufficient and which the court must
update in the light of new legal developments.
1. The person arrested, detained, invited or under custodial investigation
must be informed in a language known to and understood by him of the
reason for the arrest and he must be shown a copy of the warrant of arrest,
if any; Every other warnings, information or communication must be in a
language known to and understood by said person;
2. He must be warned that he has the right to remain silent and that any
statement he makes may be used as evidence against him;
3. He must be informed that he has the right to be assisted at all times and
have the presence of an independent and competent lawyer, preferably of
his own choice;
4. He must be informed that if he has no lawyer or cannot afford the services
of a lawyer, one will be provided for him; and that a lawyer may also be

282
engaged by any person in his behalf, or may be appointed by the court
upon petition of the person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, , he must be
informed that no custodial investigation in any form shall be conducted
except in the presence of his counsel or after a valid waiver has been
made;
6. The person arrested must be informed that, at any time, he has the right to
communicate or confer by the most expedient means---telephone, radio,
letter or messenger---with his lawyer (either retained or appointed), any
member of his immediate family; or any medical doctor, priest or minister
chosen by him or by any one from his immediate family or by his counsel,
or be visited by/confer with duly accredited national or international nongovernmental organization. IT SHALL BE THE RESPONSIBILITY OF
THE OFFICER TO ENSURE THAT THIS IS ACCOMPLISHED;
7. He must be informed that he has the right to waive any of said rights
provided it is made voluntarily, knowingly and intelligently and ensure
that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he must be
informed that it must be done in writing AND in the presence of counsel,
otherwise, he must be warned that the waiver is void even if he insist on
his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any
manner at any time or state of the process that he does not wish to be
questioned with the warning that once he makes such indication, the police
may not interrogate him if the same had not yet commenced, or the
interrogation has begun;
10. The person arrested must be informed that his initial waiver of his right to
remain silent, the right to counsel or any of his rights does not bar him
from invoking it at any other time during the process, regardless of
whether he may have answered some questions or volunteered some
information or statements;
11. He must be informed that any statement OR EVIDENCE, as the case may
be, obtained in violation of any of the foregoing, whether inculpatory or
exculpatory, in whole or in part, SHALL BE INADMISSIBLE IN
EVIDENCE.
(NOTE: Any violation of the foregoing rights of the accused shall entitle
him to sue for damages against the arresting or investigating officers in
accordance with RA7438, not to mention the possible criminal liability of
said persons under existing laws).

283
LATEST CASES ON THE RIGHTS OF A PERSON DURING
CUSTODIAL INVESTIGATION
Rights during custodial investigation; when custodial investigation is
deemed to have started; right to be informed of the nature and cause of
accusation against him.
THE PEOPLE OF THE PHILIPPINES VS. JOSE TING LAN UY,
JR., et al., 475 SCRA 248

Ynares-Santiago, J.
Facts:
For allegedly diverting and collecting funds of the National Power
Corporation intended for the purchase of US Dollars from the United
Coconut Planters Bank (UCPB), the accused-appellants were charged of
Malversation through Falsification of Commercial Documents as defined
and penalized under Arts. 217 and 171 [8] in relation to Article 48 of the
Revised Penal Code. After trial, all accused were convicted by the
Sandiganbayan.
While the Information charged the accused of willful and
intentional commission of the acts complained of while the Decision
found the accused guilty of inexcusable negligence.
Accused Ochoa interposed an appeal and claimed that his
conviction was based on his alleged sworn statement and the transcript of
stenographic notes of a supposed interview with an NPC personnel and the
report of the NBI. He maintains that he signed the sworn statement while
confined a the Philippine heart center and upon assurance that it would not
be used against him. He was not assisted by counsel nor he was apprised
of his constitutional rights when he executed the affidavit. He likewise
claimed that his constitutional rights to be informed of the nature and
cause of accusation against and due process were violated.
Held:
1. Even if the information charges willful malversation, conviction for
malversation through negligence may still be adjudged if the evidence
ultimately proves that mode of commission of the offense. (Diaz vs.
Sandiganbayan, 302 SCRA 118). This was the doctrine laid down in the
case of Samson vs. Court of appeals, 103 Phil. 277.
2. The claim that his affidavit is inadmissible in evidence in accordance with
section 12 [1] of the Bill of Rights is not tenable. The investigation
under said provision refers to custodial investigation where a suspect has
already been taken into police custody and that the investigating officers

284
begin to ask questions to elicit information and confessions or admissions
from the suspect. Succinctly stated, custodial investigation refers to the
critical pre-trial stage when the investigation ceases to be a general inquiry
into an unsolved crime but has began to focus on a particular person as a
suspect (People vs. Duenas, Jr., 426 SCRA 666). Clearly, therefore, the
rights enumerated by the accused are not available BEFORE
GOVERNMENT INVESTIGATORS ENTER THE PICTURE. The
protective mantle of section 12, article III does not apply to administrative
investigations (People vs. Judge Ayson, 175 SCRA 216); confession to a
private individual (Kimpo vs. CA, 232 SCRA 53); verbal admission made
to a radio announcer who was not a part of the investigation (People vs.
Ordono, 334 SCRA 673); or even to a Mayor approached as a personal
confidante and not in his official capacity (People vs. Zuela, 323 SCRA
589). In fact, even a videotaped interview where the accused willingly
admit his guilt in the presence of newsmen is not covered by the said
provision though the trial courts were warned by the supreme Court to
take extreme caution in admitting similar confessions because of the
distinct possibility that the police, with the connivance of unscrupulous
media practitioners, may attempt to legitimize coerced extrajudicial
confessions and place them beyond the exclusionary rule by having an
accused admit an offense on television (People vs. Endino, 353 SCRA
307).
Clearly, the confession of the accused was obtained during an
administrative investigation by NPC and therefore, the same was not
covered by Section 12, Art. III of the Constitution.
(NOTE: In People vs. Andam, the confession made before a
Municipal Mayor was held admissible as evidence).
PEOPLE VS. FIGUEROA, 335 SCRA 349
Under Art. III, Section 12 [1] of the Constitution, a suspect in custodial
investigation must be:
1.
2.
3.

informed of his right to remain silent;

warned that anything he says can be and will be used against him;
told that he has the right to counsel, and that if he is indigent, a lawyer
will be appointed to represent him.
In this case, accused-appellant was given no more than a
perfunctory recitation of his rights, signifying nothing more than a feigned
compliance with the constitutional requirements. (People vs. Samolde,
July 31, 2000)
It is always incumbent on the prosecution to prove at the trial that,
prior to in-custody questioning, the confessant was informed of his
constitutional rights. The presumption of regularity of official acts does
not prevail over the constitutional presumption of innocence. Hence, in the

285
absence of proof that the arresting officers complied with the above
constitutional safeguards, extrajudicial statements, whether inculpatory or
exculpatory, made during the custodial investigation, are inadmissible not
only against the DECLARANT but with more so against 3rd persons. THIS
IS SO EVEN IF SUCH STATEMENTS ARE GOSPEL TRUTH AND
VOLUNTARILY GIVEN.
Such statements are useless EXCEPT AS EVIDENCE AGAINST
THE VERY POLICE AUTHORITIES WHO VIOLATED THE
SUSPECTS RIGHTS.
PEOPLE VS. BARIQUIT, 341 SCRA 600
When custodial investigation is deemed to have started.
The protection under Section 12 , Art. III of the Constitution
begins when a person is taken into custody for investigation of his possible
participation in the commission of a crime, or from the time he is singled
out as a suspect in the commission of the crime, although not yet in
custody.
Custodial investigation begins when it is no longer a general
inquiry into an unsolved crime but starts to focus on a particular person as
a suspect, i.e., when the police investigator starts interrogating or exacting
confession from the suspect in connection with an alleged offense.
THE
PLACE
OF
INTERROGATION
IS
NOT
DETERMINATIVE OF THE EXISTENCE OR ABSENCE OF
CUSTODIAL INVESTIGATION BUT THE TONE AND MANNER
OF QUESTIONING BY THE POLICE AUTHORITIES. Thus, there
was custodial investigation when the police authorities, upon their arrest
of some of the accused, immediately asked them regarding their
participation in the commission of the crime , even while they were still
walking along the highway on their way to the police station. This is line
with the provisions of RA 7438 which makes it applicable even when a
person is merely invited for questioning.
PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA 515, SEPT. 1,
2000; PEOPLE VS. MAYORGA, G.R. NO. 135405, 346 SCRA 458,
NOVEMBER 29, 2000.
However, spontaneous statements voluntarily given, as where
appellant orally admitted killing the victim before the barangay
captain (who is neither a police officer nor a law enforcement agent), do
not fall under custodial investigation. Such admission, even without the
assistance of a lawyer, does not violate appellants constitutional rights
AND THEREFORE ADMISSIBLE IN EVIDENCE.

286
PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA 515, SEPT. 1,
2000; PEOPLE VS. SAMOLDE, G.R. NO. 128551, 336 SCRA 632,
JUL. 31, 2000.
To be admissible in evidence, an extrajudicial confession must be:
(i) voluntary;
(ii) made with the assistance of competent and independent counsel;
(iii) express; and
(iv) in writing.
A suspects confession, whether verbal or non-verbal, when taken
without the assistance of counsel, without a valid waiver of such
assistance, regardless of the absence of coercion or the fact that it had been
voluntarily given, is inadmissible in evidence, even if appellants
confession were gospel truth.
Requisites
confession

of

valid

extrajudicial

PEOPLE OF THE PHILIPPINES vs. ROMULO

TUNIACO, ET AL.,
G.R. No. 185710,
January 10, 2010
ABAD, J.:
This case is about the requirements of a valid extrajudicial confession and
the establishment of the existence of corpus delicti in murder cases.
The Facts and the Case
The city prosecutor of General Santos City charged the accused Romulo
Tuniaco, Jeffrey Datulayta, and Alex Aleman with murder before the Regional
Trial Court (RTC) of General Santos City in Criminal Case 8370.
Based on the findings of the RTC, in the morning of June 13, 1992 some
police officers from the Lagao Police Sub-Station requested police officer Jaime
Tabucon of the Central Police Station of General Santos City homicide division to
take the statement of accused Alex Aleman regarding the slaying of a certain
Dondon Cortez. On his arrival at the sub-station, Tabucon noted the presence of
Atty. Ruperto Besinga, Jr. of the Public Attorneys Office (PAO) who was
conversing with those taken into custody for the offense. When queried if the
suspects would be willing to give their statements, Atty. Besinga said that they
were.
Some other police officer first took the statement of accused Jeffrey
Datulayta. Officer Tabucon next took the statement of accused Aleman, whom he
observed to be in good physical shape.

287
Before anything else, officer Tabucon informed accused Aleman in
Cebuano of his constitutional right to remain silent and to the assistance of
counsel of his own choice and asked him if he was willing to give a statement.
Aleman answered in the affirmative. When asked if he had any complaint to
make, Aleman said that he had none. When Aleman said that he had no lawyer,
Tabucon pointed to Atty. Besinga who claimed that he was assisting all the
suspects in the case. Tabucon warned Aleman that anything he would say may be
used against him later in court. Afterwards, the police officer started taking down
Alemans statement.
Accused Aleman said that in the course of a drinking bout with accused
Datulayta and Tuniaco at around 9 p.m. on June 6, 1992, Dondon Cortez
threatened to report his drinking companions illegal activities to the police unless
they gave him money for his forthcoming marriage. According to Aleman,
Datulayta and Tuniaco had already planned to kill Cortez in Tupi, South Cotabato,
for making the same threats and now they decided to do it. They got Cortez drunk
then led him out supposedly to get the money he needed.
The three accused brought Cortez to Apopong near the dump site and, as
they were walking, accused Aleman turned on Cortez and stabbed him on the
stomach. Accused Datulayta, on the other hand, drew out his single shot
homemade M16 pistol and shot Cortez on the head, causing him to fall. Datulayta
handed over the gun to Aleman who fired another shot on Cortezs head. Accused
Tuniaco used the same gun to pump some bullets into Cortezs body. Then they
covered him with rice husks.
After taking down the statement, Tabucon explained the substance of it to
accused Aleman who then signed it in the presence of Atty. Besinga.
On June 15, 1992 the police brought Aleman to the City Prosecutors
Office where he swore to his statement before an assistant city prosecutor. In the
afternoon, accused Datulayta and Aleman led Tabucon, the city prosecutor, and a
police inspector, to the dump site where they left their victims body. After some
search, the group found a spot covered with burnt rice husks and a partially burnt
body of a man. About a foot from the body, they found the shells of a 5.56 caliber
gun and an armalite rifle.
On being arraigned, all three accused, assisted by Atty. Besinga, pleaded
not guilty to the murder charge. After the prosecution rested its case, accused
Tuniaco filed a demurrer to evidence which the Court granted, resulting in the
dismissal of the case against him. On being re-arraigned at his request, accused
Datulayta pleaded guilty to the lesser offense of Homicide. The trial court
sentenced him to imprisonment of six years and one day and to pay P50,000.00 to
the victims family.
For some reason, the trial court had Aleman subjected to psychiatric
examination at the Davao Mental Hospital. But, shortly after, the hospital sent
word that Aleman had escaped. He was later recaptured. When trial in the case
resumed, Alemans new PAO lawyer raised the defense of insanity. This

288
prompted the court to require the Provincial Jail Warden to issue a certification
regarding Alemans behavior and mental condition while in jail to determine if he
was fit to stand trial. The warden complied, stating that Aleman had been
observed to have good mental condition and did not commit any infraction while
in jail.
Although the prosecution and defense stipulated that Atty. Besinga assisted
accused Aleman during the taking of his extrajudicial confession, the latter,
however, recanted what he said to the police during the trial. He testified that
sometime in 1992, some police officers took him from his aunts house in Purok
Palen, Labangal, General Santos City, and brought him to the Lagao police
station. He was there asked to admit having taken part in the murder of Cortez.
When he refused, they tortured him until he agreed to sign a document admitting
his part in the crime.
Accused Aleman also testified that he could not remember having been
assisted by Atty. Besinga during the police investigation. He even denied ever
knowing the lawyer. Aleman further denied prior association with accused
Tuniaco and Datulayta. He said that he met them only at the city jail where they
were detained for the death of Cortez.
On October 8, 2001 the RTC rendered judgment, finding accused Aleman
guilty beyond reasonable doubt of the crime charged, and sentenced him to suffer
the penalty of reclusion perpetua. The court also ordered him to pay death
indemnity of P70,000.00 and moral damages of P50,000.00 to the heirs of
Cortez.
On appeal to the Court of Appeals (CA) in CA-G.R. CR-HC 00311, the
court rendered judgment on January 21, 2008, affirming the decision of the RTC
with the modification that directed accused Aleman and Datulayta to indemnify
the heirs of Cortez, jointly and severally, in the amounts of P50,000.00 as civil
indemnity; P50,000.00 as moral damages; P25,000.00 as temperate damages; and
P25,000.00 as exemplary damages. Aleman appealed to this Court.
The Issues Presented
Accused Aleman raises two issues: a) whether or not the prosecution was
able to present evidence of corpus delicti; and b) whether or not accused
Alemans extrajudicial confession is admissible in evidence.
The Rulings of the Court
1.
Corpus delicti has been defined as the body, foundation, or
substance of a crime. The evidence of a dead body with a gunshot wound on its
back would be evidence that murder has been committed. Corpus delicti has two
elements: (a) that a certain result has been established, for example, that a man
has died and (b) that some person is criminally responsible for it. The prosecution
is burdened to prove corpus delicti beyond reasonable doubt either by direct
evidence or by circumstantial or presumptive evidence.

289
The defense claims that the prosecution failed to prove corpus delicti since
it did not bother to present a medical certificate identifying the remains found at
the dump site and an autopsy report showing such remains sustained gunshot and
stab wounds that resulted in death; and the shells of the guns used in killing the
victim.
But corpus delicti need not be proved by an autopsy report of the dead
victims body or even by the testimony of the physician who examined such
body. While such report or testimony is useful for understanding the nature of the
injuries the victim suffered, they are not indispensable proof of such injuries or of
the fact of death. Nor is the presentation of the murder weapons also
indispensable since the physical existence of such weapons is not an element of
the crime of murder.
Here, the police authorities found the remains of Cortez at the place
pointed to by accused Aleman. That physical confirmation, coming after his
testimony of the gruesome murder, sufficiently establishes the corpus delicti of
the crime. Of course, that statement must be admissible in evidence.
2.
There is no reason for it not to be. Confession to be admissible
must be a) voluntary; b) made with the assistance of a competent and
independent counsel; c) express; and d) in writing. These requirements were
met here. A lawyer, not working with or was not beholden to the police, Atty.
Besinga, assisted accused Aleman during the custodial investigation. Officer
Tabucon testified that he saw accused Aleman, before the taking of his statement,
conversing with counsel at the police station. Atty. Besinga did not dispute this
claim.
Aleman alleges torture as the reason for the execution of the confession.
The appellate court is correct in ruling that such allegation is baseless. It is a
settled rule that where the defendant did not present evidence of compulsion,
where he did not institute any criminal or administrative action against his
supposed intimidators, where no physical evidence of violence was presented, all
these will be considered as indicating voluntariness. Here, although Aleman
claimed that he bore torture marks on his head, he never brought this to the
attention of his counsel, his relatives, or the prosecutor who administered his
oath.
Accused Aleman claims, citing People v. Galit, that long questions
followed by monosyllabic answers do not satisfy the requirement that the accused
is amply informed of his rights. But this does not apply here. Tabucon testified
that he spoke to Aleman clearly in the language he knew. Aleman, joined by Atty.
Besinga, even signed a certification that the investigator sufficiently explained to
him his constitutional rights and that he was still willing to give his statement.
Further, Aleman asserts that he was lacking in education and so he did not
fully realize the consequences of a confession. But as the CA said, no law or
jurisprudence requires the police officer to ascertain the educational attainment of
the accused. All that is needed is an effective communication between the

290
interrogator and the suspect to the end that the latter is able to understand his
rights. This appears to have been done in this case.
Moreover, as the lower court noted, it is improbable that the police
fabricated Alemans confession and just forced him to sign it. The confession has
details that only the person who committed the crime could have possibly known.
What is more, accused Datulaytas confession corroborate that of Aleman in
important details. Under the doctrine of interlocking confessions, such
corroboration is circumstantial evidence against the person implicated in it.
Custodial Investigation before Bantay
Bayan Members requires that the suspect
be informed of his Expanded Miranda
Rights; otherwise, the evidence obtained
shall be inadmissible in evidence.

PEOPLE OF THE PHILIPPINES VS. ANTONIO

LAUGA, G.R. No. 186228, March 15, 2010
PEREZ, J.:
Consistent with the ruling of this Court in People v. Cabalquinto, the real
name and the personal circumstances of the victim, and any other information
tending to establish or compromise her identity, including those of her immediate
family or household members, are not disclosed in this decision.
The Facts
In an Information dated 21 September 2000, the appellant was accused of
the crime of QUALIFIED RAPE allegedly committed as follows:
That on or about the 15th day of March 2000, in the
evening, at Barangay xxx, municipality of xxx, province of
Bukidnon, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, being the father of
AAA with lewd design, with the use of force and intimidation, did
then and there, willfully, unlawfully and criminally have carnal
knowledge with his own daughter AAA, a 13 year[s]old minor
against her will.
On 12 October 2000, appellant entered a plea of not guilty. During the
pre-trial conference, the prosecution and the defense stipulated and admitted: (a)
the correctness of the findings indicated in the medical certificate of the physician
who examined AAA; (b) that AAA was only thirteen (13) years old when the
alleged offense was committed; and (c) that AAA is the daughter of the appellant.
On trial, three (3) witnesses testified for the prosecution, namely: victim AAA;

291
her brother BBB; and one Moises Boy Banting, a bantay bayan in the
barangay. Their testimonies revealed the following:
In the afternoon of 15 March 2000, AAA was left alone at home. AAAs
father, the appellant, was having a drinking spree at the neighbors place. Her
mother decided to leave because when appellant gets drunk, he has the habit of
mauling AAAs mother. Her only brother BBB also went out in the company of
some neighbors.
At around 10:00 oclock in the evening, appellant woke AAA up; removed
his pants, slid inside the blanket covering AAA and removed her pants and
underwear; warned her not to shout for help while threatening her with his fist;
and told her that he had a knife placed above her head. He proceeded to mash her
breast, kiss her repeatedly, and inserted his penis inside her vagina.
Soon after, BBB arrived and found AAA crying. Appellant claimed he
scolded her for staying out late. BBB decided to take AAA with him. While on
their way to their maternal grandmothers house, AAA recounted her harrowing
experience with their father. Upon reaching their grandmothers house, they told
their grandmother and uncle of the incident, after which, they sought the
assistance of Moises Boy Banting.
Moises Boy Banting found appellant in his house wearing only his
underwear. He invited appellant to the police station, to which appellant obliged.
At the police outpost, he admitted to him that he raped AAA because he was
unable to control himself.
The following day, AAA submitted herself to physical examination. Dra.
Josefa Arlita L. Alsula, Municipal Health Officer of x x x, Bukidnon, issued the
Medical Certificate, which reads:
hyperemic vulvae with 4 oclock & 6 oclock freshly
lacerated hymen; (+) minimal to moderate bloody discharges 2 to
an alleged raping incident
On the other hand, only appellant testified for the defense. He believed
that the charge against him was ill-motivated because he sometimes physically
abuses his wife in front of their children after engaging in a heated argument, and
beats the children as a disciplinary measure. He went further to narrate how his
day was on the date of the alleged rape.
The lone assignment of error in the appellants brief is that, the trial court
gravely erred in finding him guilty as charged despite the failure of the
prosecution to establish his guilt beyond reasonable doubt, because: (1) there were
inconsistencies in the testimonies of AAA and her brother BBB; (2) his
extrajudicial confession before Moises Boy Banting was without the assistance of
a counsel, in violation of his constitutional right; and (3) AAAs accusation was
ill-motivated.

292
HELD
Appellant contests the admissibility in evidence of his alleged confession
with a bantay bayan and the credibility of the witnesses for the prosecution.
Admissibility in Evidence of an Extrajudicial
Confession before a Bantay Bayan
Appellant argues that even if he, indeed, confessed to Moises Boy Banting,
a bantay bayan, the confession was inadmissible in evidence because he was
not assisted by a lawyer and there was no valid waiver of such requirement.
The case of People v. Malngan is the authority on the scope of
Miranda doctrine provided for under Article III, Section 12(1) and (3) of
Constitution. In Malngan, appellant questioned the admissibility of
extrajudicial confessions given to the barangay chairman and a neighbor of
private complainant. This Court distinguished. Thus:

the
the
her
the

Arguably, the barangay tanods, including the Barangay

Chairman, in this particular instance, may be deemed as law
enforcement officer for purposes of applying Article III,
Section 12(1) and (3), of the Constitution. When accusedappellant was brought to the barangay hall in the morning of 2
January 2001, she was already a suspect, actually the only one, in
the fire that destroyed several houses x x x. She was, therefore,
already under custodial investigation and the rights guaranteed by
x x x [the] Constitution should have already been observed or
applied to her. Accused-appellants confession to Barangay
Chairman x x x was made in response to the interrogation made
by the latter admittedly conducted without first informing
accused-appellant of her rights under the Constitution or done in
the presence of counsel. For this reason, the confession of
accused-appellant, given to Barangay Chairman x x x, as well as
the lighter found x x x in her bag are inadmissible in evidence
against her x x x.
[But such does] not automatically lead to her acquittal. x x x [T]he
constitutional safeguards during custodial investigations do not
apply to those not elicited through questioning by the police or
their agents but given in an ordinary manner whereby the accused
verbally admits x x x as x x x in the case at bar when accusedappellant admitted to Mercedita Mendoza, one of the neighbors x x
x [of the private complainant]. (Emphasis supplied)
Following the rationale behind the ruling in Malngan, this Court needs to
ascertain whether or not a bantay bayan may be deemed a law enforcement
officer within the contemplation of Article III, Section 12 of the Constitution.

293
In People of the Philippines v. Buendia, this Court had the occasion to
mention the nature of a bantay bayan, that is, a group of male residents
living in [the] area organized for the purpose of keeping peace in their
community[,which is] an accredited auxiliary of the x x x PNP.
Also, it may be worthy to consider that pursuant to Section 1(g) of
Executive Order No. 309 issued on 11 November 1987, as amended, a Peace and
Order Committee in each barangay shall be organized to serve as implementing
arm of the City/Municipal Peace and Order Council at the Barangay level. The
composition of the Committee includes, among others: (1) the Punong Barangay
as Chairman; (2) the Chairman of the Sangguniang Kabataan; (3) a Member of
the Lupon Tagapamayapa; (4) a Barangay Tanod; and (5) at least three (3)
Members of existing Barangay-Based Anti-Crime or neighborhood Watch
Groups or a Non Government Organization Representative well-known in
his community.
This Court is, therefore, convinced that barangay-based volunteer
organizations in the nature of watch groups, as in the case of the bantay
bayan, are recognized by the local government unit to perform functions
relating to the preservation of peace and order at the barangay level. Thus,
without ruling on the legality of the actions taken by Moises Boy Banting, and the
specific scope of duties and responsibilities delegated to a bantay bayan,
particularly on the authority to conduct a custodial investigation, any inquiry he
makes has the color of a state-related function and objective insofar as the
entitlement of a suspect to his constitutional rights provided for under Article
III, Section 12 of the Constitution, otherwise known as the Miranda Rights, is
concerned.
We, therefore, find the extrajudicial confession of appellant, which was
taken without a counsel, inadmissible in evidence.
Be that as it may, We agree with the Court of Appeals that the conviction
of the appellant was not deduced solely from the assailed extrajudicial confession
but from the confluence of evidence showing his guilt beyond reasonable
doubt.
Voluntary and spontaneous confession of
a suspect who is already under custody of
the police is admissible in evidence even
in the absence of counsel.
PEOPLE OF THE PHILIPPINES VS. VICTOR
VILLARINO, G.R.NO. 185012, MARCH 5, 2010
FACTS:
On April 28, 1995, BBB, together with her 10-year old daughter AAA and
her younger son CCC went to the house of their relative in Barangay D to attend the
fiesta to be held the next day.

294
On even date, from 7:00 oclock to 9:00 oclock in the evening, SPO4 Jesus
Genoguin (SPO4 Genoguin) was in his house in Barangay D entertaining his guests,
one of whom was appellant. While personally serving food and drinks to appellant,
SP04 Genoguin noticed that the latter was wearing a bracelet and a necklace with
pendant. Appellant even allowed SPO4 Genoguin to put on the bracelet.
On April 29, 1995, at around 9:00 oclock in the morning, the appellant who was
on his way to Barangay D, passed by the house of Rodrigo Olaje (Rodrigo). At that
time, Rodrigo noticed appellant wearing a bracelet and a necklace with pendant. He was
also wearing a white sleeveless t-shirt (sando).
At 11:00 oclock in the morning, appellant was at the house of BBBs aunt.
BBB offered him food. BBB also noticed that he was dressed in a white sando and
that he wore jewelry consisting of a bracelet and a necklace with pendant. At 1:00
oclock in the afternoon, he was seen wearing the same sando and jewelry while drinking
at the basketball court in Barangay D.
At around 3:00 oclock in the afternoon, BBB told AAA to go home to
Barangay D1 to get a t-shirt for her brother. AAA obeyed. However, she no longer
returned. While BBB was anxiously waiting for AAA in the house of her aunt in
Barangay D, she received information that a dead child had been found in Barangay
D1. She proceeded to the area where she identified the childs body as that of her
daughter, AAA.
At around 4:00 oclock in the afternoon, Rodrigo, who was the barangay captain
of Barangay D1 received information that a dead child was found in their barangay.
He instructed a barangay tanod to inform the police about the incident. Thereafter,
Rodrigo proceeded to the specified area together with other barangay tanods.
SPO4 Genoguin also went to the crime scene after being informed by his
commander. Upon arrival, he saw the corpse of a little girl behind a big boulder that was
about 10 meters away from the trail junction of the barangays. People had gathered
seven to 10 meters away from the dead body, but no one dared to approach.
AAAs lifeless body lay face up with her buttocks on top of a small rock. Her
body was slanted downward with her legs spread apart and dangling on the sides of the
small boulder. She was no longer wearing short pants and panty, and blood oozed from
her vagina. Wrapped around her right hand, which was positioned near her right ear, was
a white sando.
AAAs panty was found a meter away from her body, while her short pants
was about two meters farther. A bracelet and a pendant were also recovered from the
crime scene. Rodrigo and BBB identified these pieces of jewelry as those seen on the
appellant. They also identified the sando on AAAs arm as the appellants. Thus, the
hunt for appellant began.
On the same day, the appellant was found in the house of Aurelia Susmena near
the seashore of Barangay D1. He was drunk and violent. He resisted arrest and had to
be bodily carried to the motorboat that would take him to the municipal building in

295
Almagro, Samar. The arresting team made the appellant take off his clothes since they
were wet. When he complied, his briefs revealed bloodstains.
On May 2, 1995, the police brought appellant to Calbayog City for medical
examination since he had scratches and abrasions on his body. While waiting for a boat
ride at 4:00 oclock in the morning, the police team took a coffee break. SPO4 Genoguin
was momentarily left alone to guard the appellant. During this short period, the appellant
voluntarily admitted to SPO4 Genoguin that he committed the crime charged. He also
told SPO4 Genoguin that he could keep the pendant and bracelet if he would retrieve the
t-shirt and throw it into the sea. SPO4 Genoguin rejected the appellants offer and
reminded him of his right to a counsel and that everything the appellant said could be
used against him in court. Unperturbed, the appellant reiterated his offer.
When they boarded the motorboat, the appellant repeatedly offered to give SPO4
Genoguin P20,000.00 if he would throw the sando into the sea. However, the police
officer ignored the offer and instead reported the matter to the Chief of Police of
Almagro, SPO4 Basilio M. Yabao. Later, the appellants mother, Felicidad Mabute y
Legaspi, asked him not to testify against her son.
At the Calbayog District Hospital, Senior Resident Physician Dr. Jose V. Ong,
found that appellants body had 10 healed abrasions and two linear abrasions or
scratches, particularly, on his breast, knees, as well as right and left ears, that could have
been caused by fingernails.
On August 3, 1995, an Information was filed charging appellant Victor Villarino
y Mabute with the special complex crime of rape with homicide. The Information
contained the following accusatory allegations:
That on or about the 29 th day of April, 1995, at about 5:00
oclock in the afternoon, at Barangay D1, Municipality of Almagro,
Province of Samar, Philippines, and within the jurisdiction of this
Honorable Court, the above named accused, with lewd design, by means
of force, violence and intimidation, did then and there, willfully,
unlawfully and feloniously have carnal knowledge against a minor ten
(10) years [sic], AAA, without the latters consent and against her will,
and thereafter, with deliberate intent to kill, did then and there willfully,
unlawfully and feloniously inflict upon the said AAA mortal wounds
on x x x different parts of her body, which caused her untimely death.
CONTRARY TO LAW.
Appellant pleaded not guilty to the crime charged. After the termination of the
pre-trial conference, trial ensued.
The RTC found him guilty beyond reasonable doubt of the complex crime of
Rape with Homicide and sentenced to Death.
ISSUE:

296

Is accused-appellants voluntary confession to SPO4 Genoguin admissible in evidence?

HELD:
In the instant case, appellant voluntarily confessed to raping and killing AAA
to SPO4 Genoguin. He even offered to give the pieces of jewelry to the latter if his
sando is thrown into the sea. The appellant did not deny this accusation nor assail its
truthfulness.
When appellant confessed to the crime, he was alone with SPO4 Genoguin, and
no force or intimidation was employed against him. The confession was spontaneously
made and not elicited through questioning. The trial court did not, therefore, err in
holding that compliance with the constitutional procedure on custodial interrogation is
not applicable in the instant case.
In People v. Dy, we held that:
Contrary to the defense contention, the oral confession made by
the Accused to Pat. Padilla that he had shot a tourist and that the gun he
had used in shooting the victim was in his bar which he wanted
surrendered to the Chief of Police (t.s.n., October 17, 1984, pp. 6-9), is
competent evidence against him. The declaration of an accused
acknowledging his guilt of the offense charged may be given in evidence
against him (Sec. 29, Rule 130, Rules of Court). It may in a sense be
also regarded as part of the res gestae. The rule is that, any person,
otherwise competent as a witness, who heard the confession, is
competent to testify as to the substance of what he heard if he heard and
understood all of it. An oral confession need not be repeated verbatim,
but in such a case it must be given in substance (23 C.J.S. 196, cited in
People v. Tawat, G.R. No. 62871, May 25, 1985, 129 SCRA 431).
What was told by the Accused to Pat. Padilla was a spontaneous
statement not elicited through questioning, but given in an ordinary
manner. No written confession was sought to be presented in evidence
as a result of formal custodial investigation. (People v. Taylaran, G.R.
No. L-19149, October 31, 1981, 108 SCRA 373). The Trial Court,
therefore, cannot be held to have erred in holding that compliance with
the constitutional procedure on custodial interrogation is not applicable
in the instant case, as the defense alleges in its Error VII.
At any rate, even without his confession, appellant could still be convicted of the
complex crime of rape with homicide. The prosecution established his complicity in the
crime through circumstantial evidence which were credible and sufficient, and led to the
inescapable conclusion that the appellant committed the complex crime of rape with
homicide. When considered together, the circumstances point to the appellant as the
culprit.
2. Guidelines for police investigation

297

Read:
1.Escobedo vs. Illinois, 378 US 478
2. Miranda vs. Arizona, 384 US 436
3. P. vs. Duero, 104 SCRA 379
2-a. Duties of the Police or Arresting Officers
Read:
1. P. vs. Matos-Viduya, Sept. 11, 1990
1-a. P vs. Nicandro, 141 SCRA 289
2. P vs. Duhan, 142 SCRA 100
3. P vs. Caguioa, 95 SCRA 2
4. P vs. Ramos, 122 SCRA 312
3. To be informed of the Right to remain silent; cases

in particular

Read:
1. Constitutional right to remain silent,104 SCRA
1-a. People vs. Marcos Jimenez, Dec. 10, 1991

391

Extrajudicial confession; counsel of choice

Right to counsel during custodial investigation; while making an
extrajudicial confession
PEOPLE VS. PATUNGAN, 354 SCRA 413
The accused was under coercive and uncounselled custodial
investigation by the police without a lawyer for 2 and a half days . Then,
he was brought to the IBP Office where a lawyer assisted him in his
extrajudicial confession.
We are inclined to believe that when he was brought to the IBP
Office, his body and his will were in no position to raise any objection
much less to complaint to the IBP lawyer about what he has gone through.
In fact, the IBP lawyer was working on an appeal in another case while the
extrajudicial confession was being taken.
The mere presence of a lawyer is not sufficient compliance with
the constitutional requirement of assistance of counsel. Assistance of
counsel must be effective, vigilant and independent. A lawyer who could
just hear the investigation going on while working on another case hardly
satisfies the minimum requirements of effective assistance of counsel. Not
only was the accused subjected to custodial investigation without counsel,

298
he was likewise denied effective assistance of counsel during the taking of
his extra-judicial confession.
PEOPLE V. JIMENEZ
G.R.No. 82604. December 10, 1991
NARVASA, J.:
FACTS:
On August 13, 1985, police authorities, acting upon a report, came
upon the corpse of Pelagio Jimenez below a cliff near a balite tree. The
police investigators learned that Marcos, the son of the deceased Pelagio
Jimenez told his mother that his father had not come home the previous
night: that the search for the deceased, who was living separately from
them, commenced a day earlier but it was not until the morning of the
following day, August 13, 1985, that deceased Pelagio was finally found
dead. They also learned from the persons they interviewed of
circumstances that drew their suspicion to the son, Marcos and Robert,
such as; the bathing at the artesian well "as if washing away stains of
blood"; the deceased's violent quarrels with his children and occasions that
he had been boxed and hit by his children. The police had invited the
deceased's widow and her sons for questioning about the killing. A draft of
the confession was prepared by the investigating officer but Marcos was
not able to sign the same due to the absence of the judge before whom it is
supposed to be sworn and signed. Marcos agreed to come back and sign
his statement, but upon his return, he, assisted by a former judge whose
presence was requested by the police authorities, refused to sign his
statement. Subsequently, an information for parricide was filed against the
widow and her sons, Marcos, Robert, and Wilkins. In an order dated July
21, 1986, the trial court absolved the widow and Wilkins of any
participation in the filling for lack of proof. On December 12. 1986, the
trial court found Marcos and Robert guilty beyond reasonable doubt of the
crime of parricide, noting that the unsigned confession is admissible in
evidence inasmuch as evidence aliunde corroborated such confession.
Both accused contest such ruling. Hence this appeal.
ISSUE:
Is the extrajudicial confession of Marcos admissible in evidence?
HELD:
No. Decision reversed.
Section 12 (1), Article III OF THE 1987 Constitution declares that
a person being investigated by the police as a suspect in an offense has the
right, among others, (1) to have a competent and independent counsel of

299
his own choice and if he cannot afford the services of counsel, he must be
provided with one; and that (2) said right cannot be waived except in
writing and in the presence of counsel.
The lawyer who assists the suspect under custodial
interrogation should be of the latter's own choice, not one foisted on
him by the police investigators or other parties. In this case, the
former judge whose assistance was requested by the police was
evidently not of Marcos Jimenez' own choice; she was the police
officers' own choice; she did not ask Marcos if was is willing to have
her represent him. This is not the mode of solicitation of legal
assistance contemplated by the constitution.
Furthermore, the former judge was not present when Marcos was
being interrogated by the police. While she asked him if he had voluntarily
given the statements contained in the typewritten document, this is far
from being substantial compliance with the constitutional duty of police
investigators during custodial interrogation.
The typewritten confession is unsigned and was in fact expressly
rejected by Marcos. Hence, the supposed waiver made therein of his
constitutional right to counsel of his own choice.
Neither can the confession prejudice his co-accused, his brother
Robert, not only because it was obtained in violation of the constitution
but also because of the principle of res inter alios acta.
The interrogation of Marcos Jimenez having been conducted
without the assistance of counsel, and no valid waiver of such right to
counsel have been made, not only the confession but also any admissible
obtained in the course thereof are inadmissible against him or his co
accused. In view of the inadmissibility in evidence of the confession, the
rest of the evidence of the prosecution is inadequate to overcome the
presumption of innocence raised by the fundamental law in favor of both
the accused.
Extrajudicial confession without the assistance of counsel, inadmissible as
evidence; exception
PEOPLE VS. PANFILO CABILES, 284 SCRA 199; PEOPLE VS. TAN,
286 SCRA 207
Melo, J.
Even if the confession of the accused speaks of the truth, if it was
made without the assistance of counsel, it is inadmissible in evidence
regardless of the absence of coercion or even if it was voluntarily given.

300
In order that a confession is admissible, the following requisites
must be present:
a. the confession must be voluntary;
b. the confession must be made with the assistance of a competent and
independent counsel;
c. the confession must be express; and
d. the confession must be in writing.
The above requirements, however, are not applicable when the
suspect makes an spontaneous statement, not elicited through questioning
by the authorities, BUT GIVEN IN AN ORDINARY MANNER
WHEREBY THE ACCUSED ORALLY ADMITTED HAVING
COMMITTED THE CRIME. This was the decision of the Supreme Court
in the case of PEOPLE VS. ANDAN, March 3, 1997 when the accused
made a voluntary and verbal confession to the Municipal Mayor that he
committed the crime imputed to him. As such, his uncounselled confession
is admissible in evidence.
PEOPLE VS. OBRERO, 332 SCRA 190
Mendoza, J.
There are two (2) kinds of involuntary or coerced confessions
under Art. III, Section 12 of the Constitution. These are:
a. confession which are the product of third degree methods such as torture,
force, violence, threat, intimidation; and
b. those which are given without the benefit of Miranda Warnings.
There is no compliance of the constitutional requirement of
competent and independent counsel to assist an accused during custodial
investigation when the accused was assisted by the Station Commander of
the WPD, Atty. De los Reyes, while being investigated by other policemen
of the same police station because the interest of the police is naturally
adverse to the accused. In fact, the SC in the case of PEOPLE VS.
JANUARIO, 267 SCRA 608 held that a lawyer applying for a position in
the NBI could not validly assist an accused being investigated then by the
NBI.
1-b. P. vs. Aspili, November 21, 1990
1-c. People vs. Judge Ayson, 175 SCRA 216 (Confession made
to the officials of Philippine Airlines during an investigation is
admissible in evidence despite the fact that he was not informed of his
rights during custodial investigations since said officials are not bound
by the requirements of Section 12, Art. III of the Constitution)
1-d. P. vs. Pinlac, 165 SCRA 675
1-e. People vs. Loveria, 187 SCRA 47
1-f. Gamboa vs. Judge Cruz, 162 SCRA 675

301
2. P. vs. Galit, 135 SCRA 465
3. P vs. Alegre, 94 SCRA 109
4. Draculan vs. Donato, 85 SCRA 266
5. P. vs. Borromeo, June 29,l983
6. P vs. Camalog, GR No. 77116, January 31, 1989
(Including the duty of Police Officers in
connection with said
right)
7. P vs. Cui, Jr., 162 SCRA 220
3-a. How about if the accused gives an spontaneous statement before he
could be advised of his right to remain silent?
Read:
Aballe vs. People, 183 SCRA 196
3-b. When shall the constitutional rights of the
above demandable? During police line-up?

accused as mentioned

Read:

1. P vs. Usman Hassan, 157 SCRA 261

2. Gamboa vs. Judge Cruz, 162 SCRA 642
3. DE LA TORRE VS. CA, 294 SCRA 196
4. PEOPLE VS. HATTON
The right to counsel;
PEOPLE VS. JEREZ, 285 SCRA 393
A lawyer provided by the investigators to the accused during the
custodial investigation is deemed engaged by the accused where he never
raised any objection against the formers appointment during the course of
the investigation AND THE ACCUSED THEREAFTER SUBSCRIBES
TO THE VERACITY OF HIS STATEMENT BEFORE THE SWEARING
OFFICER.
(NOTE: In the case of PEOPLE VS. JUANERIO, February 7,
1997, the SC held that a lawyer who was at the NBI Office applying for a
position therein and who was appointed as counsel for a suspect being
then investigated by the NBI could not be considered as the competent
and independent counsel referred to in the Constitution especially so that
later on, said lawyer was appointed by the NBI as one of its agents.)
The next case is very important. It diminishes the right to
counsel during custodial investigation and makes the work of the
investigator easier to make the confession of a suspect admissible as
evidence. It is obviously a reversal of the People vs. Juanerio ruling.

302
RIGHT TO A COMPETENT AND
INDEPENDENT COUNSEL OF HIS
OWN CHOICE. This case is different
form the previous doctrines.
PEOPLE OF THE PHILIPPINES VS. DOMINGO REYES, ET AL.,
G.R. No. 178300, March 17, 2009
CHICO-NAZARIO, J.:
On 11 August 1999, an Information193[4] was filed before the RTC
charging appellants with the special complex crime of kidnapping for
ransom with homicide. The accusatory portion of the information reads:
The undersigned State Prosecutor of the Department of Justice
hereby accuses Domingo Reyes y Paje, Alvin Arnaldo y Avena and
Joselito Flores y Victorio of the crime of kidnapping for ransom with
homicide defined and penalized under Article 267 of the Revised Penal
Code, as amended, committed as follows:
That on or about 11:00 p.m. on July 16, 1999, at Sitio Lambakin,
barangay Sto. Cristo, San Jose del Monte, Bulacan, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused
conspiring, confederating and mutually helping one another and grouping
themselves together with Juanito Pataray y Cayaban, Federico Pataray y
Cabayan and Rommel Libarnes y Acejo, who are still at large, did then
and there willfully, unlawfully and feloniously, by means of force and
intimidation and with use of firearms, carry away and deprive Robert
Yao, Yao San, Chua Ong Ping Sim, Raymond Yao, Ronald Matthew
Yao, Lennie Yao, Charlene Yao, Jona Abagatnan ang Josephine Ortea
against their will and consent on board their Mazda MVP van for the
purpose of extorting money in the amount of Five Million Pesos
(P5,000,000.00), that during the detention of Chua Ong Ping Sim and
Raymong Yao, said accused with intent to kill, willfully and unlawfully
strangled Chua Ong Ping Sim and Raymond Yao to death to the damage
and prejudice of their heirs in such amount as may be awarded to them by
this Honorable Court.
The prosecution presented as witnesses Jona Abagatnan
(Abagatnan), Robert Yao (Robert), Yao San, Police Officer 3 (PO3) Alex
Alberto, PO3 Roberto Jabien, Atty. Florimond Rous (Atty. Rous) and
Atty. Carlo Uminga (Atty. Uminga). Their testimonies, taken together,
attest to the following:
The Yao family is composed of Yao San (father), Chua Ong Ping
Sim (mother), Robert and Raymond (children), Lenny (daughter-in-law,
wife of Robert), Matthew and Charlene (grandchildren), and Jona
Abagatnan and Josephine Ortea (housemaids). The Yao family owns and
193[4]

Records, pp. 42-43.

303
operates a poultry farm in Barangay Santo Cristo, San Jose del Monte,
Bulacan.
On 16 July 1999, at about 11:00 p.m., the Yao family, on board a
Mazda MVP van, arrived at the their poultry farm in Barangay Sto. Cristo,
San Jose del Monte, Bulacan. Yao San alighted from the van to open the
gate of the farm. At this juncture, appellant Reyes and a certain Juanito
Pataray (Pataray) approached, poked their guns at Yao San, and dragged
him inside the van. Appellant Reyes and Pataray also boarded the van.
Thereupon, appellants Arnaldo and Flores, with two male companions, all
armed with guns, arrived and immediately boarded the van. Appellant
Flores took the drivers seat and drove the van. Appellants Reyes and
Arnaldo and their cohorts then blindfolded each member of the Yao family
inside the van with packaging tape.194[6]
After about 30 minutes of traveling on the road, the van stopped.
Per order of appellants and their cohorts, Chua Ong Ping Sim, Robert,
Raymond and Jona Abagatnan (Abagatnan) stepped out of the van with
appellants Reyes and Arnaldo, Pataray and one of their male
companions.195[7] Appellant Flores, with the other male companion, drove
the van with the remaining members of the Yao family inside the
vehicle.196[8]
Later, the van stopped again. Appellant Flores and his male
companion told Yao San to produce the amount of five million pesos
(P5,000,000.00) as ransom in exchange for the release of Chua Ong Ping
Sim, Robert, Raymond and Abagatnan. Thereafter, appellant Flores and
his male companion left the van and fled; while Yao San, Lenny, Matthew,
Charlene and Josephine remained inside the van. Upon sensing that the
kidnappers had already left, Yao San drove the van towards the poultry
farm and sought the help of relatives.197[9]
Meanwhile, Chua Ong Ping Sim, Robert, Raymond and Abagatnan
were taken on foot by appellants Reyes and Arnaldo, Pataray and one male
companion to a safe-house situated in the mountainous part of San Jose
Del Monte, Bulacan where they spent the whole night.198[10]
On the morning of the following day, at around 4:00 a.m.,
appellants and their cohorts tried to contact Yao San regarding the ransom
demanded, but the latter could not be reached. Thus, appellants instructed
Abagatnan to look for Yao San in the poultry farm. Appellants Reyes and
Arnaldo and one male companion escorted Abagatnan in proceeding to the
poultry farm. Upon arriving therein, Abagatnan searched for Yao San, but
194[6]

195[7]
196[8]
197[9]
198[10]

TSN, 26 October 1999, pp. 3-14; TSN, 11 August 2000, pp. 3-7; TSN, 21 September 2000, pp. 28.
TSN, 26 October 1999, pp. 16-17; TSN, 11 August 2000, p. 7.
Records, p. 34.
Id.
TSN, 26 October 1999, pp. 16-23; TSN, 7 December 1999, pp. 2-5; TSN, 11 August 2000, pp. 89.

304
the latter could not be found. Appellants Reyes and Arnaldo told
Abagatnan to remind Yao San about the ransom demanded. Thereafter,
appellants Reyes and Arnaldo and their male companion left Abagatnan in
the poultry farm and went back to the safe-house.199[11]
In the safe-house, appellants told Robert that they would release
him so he could help Abagatnan in locating Yao San. Robert and
appellants left the safe-house, and after 30 minutes of trekking, appellants
abandoned Robert. Robert then ran towards the poultry farm. Upon
arriving at the poultry farm, Robert found Yao San and informed him
about the ransom demanded by the appellants. Robert also told Yao San
that Chua Ong Ping Sim and Raymond were still held by appellants and
their cohorts.200[12]
On 18 July 1999, appellants called Yao San through a cellular
phone and demanded the ransom of P5 million for Chua Ong Ping Sim
and Raymond. Yao San acceded to appellants demand. Appellants
allowed Yao San to talk with Chua Ong Ping Sim.201[13]
On the morning of 19 July 1999, appellants again called Yao San
via a cellular phone and threatened to kill Chua Ong Ping Sim and
Raymond because of newspaper and radio reports regarding the incident.
Yao San clarified to appellants that he did not report the incident to the
police and also pleaded with them to spare the life of Chua Ong Ping Sim
and Raymond. Appellants then instructed Yao San to appear and bring
with him the ransom of P5 million at 3:00 p.m. in the Usan dumpsite,
Litex Road, Fairview, Quezon City. Yao San arrived at the designated
place of the pay-off at 4:00 p.m., but none of the appellants or their
cohorts showed up. Yao San waited for appellants call, but none came.
Thus, Yao San left.202[14]
On 23 July 1999, the corpses of Chua Ong Ping Sim and Raymond
were found at the La Mesa Dam, Novaliches, Quezon City.203[15] Both died
of asphyxia by strangulation.204[16]
On 26 July 1999, appellant Arnaldo surrendered to the Presidential
Anti-Organized Crime Task Force (PAOCTF) at Camp Crame, Quezon
City. Thereupon, appellant Arnaldo, with the assistance of Atty. Uminga,
executed a written extra-judicial confession narrating his participation in
the incident. Appellant Arnaldo identified appellants Reyes and Flores,
Pataray and a certain Tata and Akey as his co-participants in the incident.
Appellant Arnaldo also described the physical features of his cohorts and
revealed their whereabouts.205[17]
199[11]
200[12]
201[13]
202[14]
203[15]
204[16]
205[17]

TSN, 7 December 1999, pp. 4-7.

Id. at 7-8; TSN, 11 August 2000, pp. 10-12.
Records, p. 35.
Id; TSN, 11 August 2000, pp. 12-14.
TSN, 7 December 1999, pp. 8-9; TSN, 11 August 2000, pp. 14-15; Records, p. 35.
Records, pp. 15-17.
Id. at 5, 8, 12, & 24-28.

305

Subsequently, appellant Reyes was arrested in Sto. Cristo, San Jose

del Monte, Bulacan. Thereafter, appellants Arnaldo and Reyes were
identified in a police line-up by Yao San, Robert and Abagatnan as their
kidnappers.206[18]
On 10 August 1999, agents of the PAOCTF arrested appellant
Flores in Balayan, Batangas. Afterwards, appellant Flores, with the
assistance of Atty. Rous, executed a written extra-judicial confession
detailing his participation in the incident. Appellant Flores identified
appellants Reyes and Arnaldo, Pataray and a certain Tata and Akey as his
co-participants in the incident. Appellant Flores was subsequently
identified in a police line-up by Yao San, Robert and Abagatnan as one of
their kidnappers.207[19]
For its part, the defense presented the testimonies of appellants,
Marina Reyes, Irene Flores Celestino, Wilfredo Celestino, Jr., Rachel C.
Ramos, and Isidro Arnaldo. Appellants denied any liability and interposed
alibis and the defense of frame-up. Their testimonies, as corroborated by
their witnesses, are as follows:
Appellant Arnaldo testified that he was an asset of the PAOCTF.
He narrated that on 25 July 1999, while he was at the tricycle terminal of
Brgy. Sto. Cristo, San Jose del Monte, Bulacan, a police officer named
Liwanag of the PAOCTF approached and invited him to go to Camp
Crame to shed light on a kidnapping case allegedly committed by a certain
Brgy. Captain Ramos and by members of the Aguirre and Bautista
families. He accepted the invitation. Subsequently, he proceeded to Camp
Crame and met therein Colonel Cesar Mancao III (Colonel Mancao) of the
PAOCTF. Colonel Mancao told him that the PAOCTF would arrest Brgy.
Capt. Ramos and certain persons named Gerry Bautista and Dadie
Bautista. Colonel Mancao instructed him to identify said persons as
responsible for the kidnapping of the Yao family. He refused to do so
because he feared Brgy. Capt. Ramos. The day after, Colonel Mancao
called appellant Arnaldo to his office. Upon arriving thereat, the latter saw
Yao San. Yao San promised him that if their kidnappers would be
apprehended through his cooperation, he would give him P500,000.00.
He accepted Yao Sans offer under the condition that he would identify a
different set of suspects. Later, Colonel Mancao gave him P30,000.00.208
[31]

Subsequently, he pointed to appellants Reyes and Flores as his

cohorts in kidnapping the Yao family. He implicated appellants Reyes and
Flores to get even with them, since the two had previously mauled him

206[18]
207[19]
208[31]

Id. at 13-14 & 33, 35, & 38.

Id. at 46-48, 63-64 & 302-306.
TSN, 7 June 2001, pp. 3-21.

306
after he sold their fighting cocks and failed to give them the proceeds of
the sale.209[32]
He denied having met with Atty. Uminga. He was not assisted by
the latter when he was forced by the PAOCTF to make a written extrajudicial confession on the kidnapping of the Yao family. Further, he
claimed that while he was under the custody of PAOCTF, a certain Major
Paulino utilized him as a drug pusher. Upon failing to remit the proceeds
of the drug sale, he was beaten up by PAOCTF agents and thereafter
included as accused with appellants Reyes and Flores for the kidnapping
of the Yao family.210[33]
On the other hand, appellant Reyes testified that he slept in his
house with his family from 6:00 p.m. of 16 July 1999 until the morning of
the next day; that on the early morning of 26 July 1999, five policemen
barged into his house and arrested him; that the policemen told him that he
was a suspect in the kidnapping of the Yao family; that he was mauled by
the policemen outside his house; that the policemen forcibly brought him
to Camp Crame, where he was subsequently tortured; that he knew the
Yao family because he worked as a carpenter in the familys poultry farm
at Brgy. Sto. Cristo, San Jose del Monte, Bulacan; that he had no
involvement in the kidnapping of the family; and that appellant Arnaldo
implicated him in the kidnapping of the family because appellant Arnaldo
held a grudge against him.211[34]
For his part, appellant Flores testified that he stayed in his sisters
house at Antipolo City from 12 July 1999 up to 30 July 1999; that he went
to her house on 12 July 1999 because it was the birthday of her child; that
he worked as a construction worker during his stay in his sisters house;
that he was arrested in Batangas and thereafter brought to Camp Crame,
where he was beaten up by policemen for refusing to admit involvement in
the kidnapping of the Yao family; that after three days of beating, he was
forced to sign a document which he later found out to be a written extrajudicial confession; that he never met nor did he know Atty. Rous; that he
knew the Yao family because he lived near the familys poultry farm, and
he used to work therein as a welder; that he had no participation in the
kidnapping of the family; and that appellant Arnaldo implicated him in the
kidnapping of the family because he and appellant Reyes had mauled
appellant Arnaldo several years ago.212[35]
The defense proffered documentary and object evidence to buttress
their foregoing claims, to wit: (1) prayer booklet of appellant Arnaldo
(Exhibit 1 for appellant Arnaldo);213[36] (2) calling card of Colonel Mancao
(Exhibit 2 for appellant Arnaldo);214[37] and (3) pictures allegedly showing
209[32]
210[33]
211[34]
212[35]
213[36]
214[37]

TSN, 10 July 2001, pp. 3-6.

Id. at 10-16; TSN, 21 August 2001, pp. 3-14.
TSN, 6 March 2001, pp. 3-10.
TSN, 24 May 2001, pp. 2-9.
Records, Volume VI, Index of Exhibits.
Id.

307
appellant Flores working as a carpenter in Antipolo City (Exhibits 1 & 2
for appellant Flores).215[38]
After trial, the RTC rendered a Decision dated 26 February 2002
convicting appellants of the special complex crime of kidnapping for
ransom with homicide and sentencing each of them to suffer the supreme
penalty of death. Appellants were also ordered to pay jointly and severally
the Yao family P150,000.00 as civil indemnity, P500,000.00 as moral
damages and the costs of the proceedings. The dispositive portion of the
RTC Decision reads:
WHEREFORE, finding herein three (3) accused DOMINGO
REYES y PAJE, ALVIN ARNALDO y AVENA, and JOSELITO FLORES
y VICTORIO guilty as principals beyond reasonable doubt of the crime of
KIDNAPPING FOR RANSOM WITH (DOUBLE) HOMICIDE as
charged, they are hereby sentenced each to suffer the supreme penalty of
DEATH as mandated by law, to jointly and severally indemnify the heirs
of deceased Chua Ong Ping Sim and Raymond Yao in the amount of One
Hundred Fifty Thousand Pesos (P150,000.00), and all the private offended
parties or victims, including the heirs of the deceased, in the amount of
Five Hundred Thousand Pesos (P500,000.00) as moral damages, subject to
the corresponding filing fee as a first lien, and to pay the costs of the
proceedings.216[39]
By reason of the death penalty imposed on each of the appellants,
the instant case was elevated to us for automatic review. However,
pursuant to our ruling in People v. Mateo,217[40] we remanded the instant
case to the Court of Appeals for proper disposition.
On 14 August 2006, the Court of Appeals promulgated its Decision
affirming with modifications the RTC Decision. The appellate court
reduced the penalty imposed by the RTC on each of the appellants from
death penalty to reclusion perpetua without the possibility of parole. It
also decreased the amount of civil indemnity from P150,000.00 to
P100,000.00. Further, it directed appellants to pay jointly and severally the
Yao family P100,000.00 as exemplary damages. The fallo of the Court of
Appeals decision states:
WHEREFORE, premises considered, the Decision of the Regional
Trial Court of Malolos, Bulacan, Branch 12, dated February 26, 2002, in
Criminal Case No. 1611-M-99 convicting accused-appellants of the crime
of Kidnapping For Ransom with (Double) Homicide, is hereby
AFFIRMED with MODIFICATIONS in that:
1)
accused-appellants are instead sentenced to suffer the
penalty of reclusion perpetua;
215[38]
216[39]
217[40]

Records, p. 357.
CA rollo, p. 61.
G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.

308

2)
the award of civil indemnity ex delicto is hereby reduced to
P100,000; and
3)
accused-appellants are further ordered to pay private
complainants the amount of P100,000.00 as exemplary damages.218[41]
Appellants filed a motion for reconsideration of the Court of
Appeals Decision but this was denied. Hence, appellants filed their
Notice of Appeal on 25 August 2006.
One of the main issues raised is:
THE TRIAL COURT ERRED IN GIVING WEIGHT AND
CREDENCE TO THE EXTRA-JUDICIAL CONFESSIONS OF
APPELLANT ARNALDO AND APPELLANT FLORES;
Appellant Reyes claims that his alleged participation in the
kidnapping of the Yao family was based solely on the written extrajudicial confessions of appellants Arnaldo and Flores. He maintains,
however, that said extra-judicial confessions are inadmissible in evidence,
because they were obtained in violation of his co-appellants constitutional
right to have an independent counsel of their own choice during custodial
investigation. Appellant Reyes alleges that the agents of the PAOCTF did
not ask his co-appellants during the custodial investigation whether they
had a lawyer of their own choice, and whether they could afford to hire a
lawyer; that the agents of the PAOCTF suggested the availability of Atty.
Uminga and Atty. Rous to his co-appellants; and that Atty. Uminga and
Atty. Rous were associates of the PAOCTF. Appellant Reyes also
asseverates that the extra-judicial confessions of appellants Arnaldo and
Flores cannot be utilized against him.
Appellant Flores argues that his written extra-judicial confession is
inadmissible in evidence, because it was obtained in violation of his
constitutional right to have an independent counsel of his own choice
during custodial investigation. He insists that his written extra-judicial
confession was elicited through force, torture and without the assistance of
a lawyer. He avers that he was not assisted by any lawyer from the time
he was arrested until he was coerced to sign the purported confession; that
he was forced to sign it because he could not anymore endure the beatings
he suffered at the hands of the PAOCTF agents; and that he never met or
knew Atty. Rous who, according to the PAOCTF, had assisted him during
the custodial investigation.
Appellant Arnaldo contends that his written extra-judicial
confession should be excluded as evidence, as it was procured in violation
of his constitutional right to have an independent counsel of his own
choice during custodial investigation. He claims that he was not given
218[41]

Rollo, p. 34.

309
freedom to choose his counsel; that the agents of the PAOCTF did not ask
him during the custodial investigation whether he had a lawyer of his own
choice, and whether he could afford to hire a lawyer; and that the agents of
the PAOCTF suggested the availability of Atty. Uminga to him.
Thus, we have held that an extra-judicial confession is admissible
in evidence if the following requisites have been satisfied: (1) it must be
voluntary; (2) it must be made with the assistance of competent and
independent counsel; (3) it must be express; and (4) it must be in
writing.219[67]
The right of an accused to be informed of the right to remain silent
and to counsel contemplates the transmission of meaningful
information rather than just the ceremonial and perfunctory
recitation of an abstract constitutional principle.220[69] Such right
contemplates effective communication which results in the subject
understanding what is conveyed.221[70]
The right to counsel is a fundamental right and is intended to
preclude the slightest coercion as would lead the accused to admit
something false.222[71] The right to counsel attaches upon the start of the
investigation, i.e., when the investigating officer starts to ask questions to
elicit information and/or confessions or admissions from the accused.223[72]
The lawyer called to be present during such investigation should be, as far
as reasonably possible, the choice of the accused. If the lawyer is one
furnished in behalf of accused, he should be competent and independent;
that is, he must be willing to fully safeguard the constitutional rights of the
accused.224[73] A competent and independent counsel is logically required
to be present and able to advice and assist his client from the time the
latter answers the first question asked by the investigator until the signing
of the confession. Moreover, the lawyer should ascertain that the
confession was made voluntarily, and that the person under investigation
fully understood the nature and the consequence of his extra-judicial
confession vis-a-vis his constitutional rights. 225[74]
However, the foregoing rule is not intended to deter to the accused
from confessing guilt if he voluntarily and intelligently so desires, but to
protect him from admitting what he is being coerced to admit although
untrue. To be an effective counsel, a lawyer need not challenge all the
questions being propounded to his client. The presence of a lawyer is not
intended to stop an accused from saying anything which might
incriminate him; but, rather, it was adopted in our Constitution to
preclude the slightest coercion on the accused to admit something
219[67]
220[69]
221[70]
222[71]
223[72]
224[73]
225[74]

People v. Base, 385 Phil. 803, 815 (2000).

People v. Sayaboc, 464 Phil. 824, 839 (2004).
People v. Agustin, 310 Phil. 594, 612 (1995).
People v. Olermo, 454 Phil. 147, 165 (2003).
Gamboa v. Cruz, G.R. No. L-56291, 27 June 1988, 162 SCRA 642, 653.
People v. Deniega, G.R. No. 103499, 29 December 1995, 251 SCRA 626, 637.
People v. Velarde, 434 Phil. 102, 119 (2002).

310
false. The counsel should never prevent an accused from freely and
voluntarily telling the truth.226[75]
We have gone over the records and found that the PAOCTF
investigators have duly apprised appellants Arnaldo and Flores of their
constitutional rights to remain silent and to have competent and
independent counsel of their own choice during their respective custodial
investigations.
The Pasubali227[76] of appellants Arnaldo and Floress written extrajudicial confessions clearly shows that before they made their respective
confessions, the PAOCTF investigators had informed them that the
interrogation about to be conducted on them referred to the kidnapping of
the Yao family. Thereafter, the PAOCTF agents explained to them that
they had a constitutional right to remain silent, and that anything they
would say may be used against them in a court of law. They were also
told that they were entitled to a counsel of their own choice, and that they
would be provided with one if they had none. When asked if they had a
lawyer of their own, appellant Arnaldo replied that he would be assisted
by Atty. Uminga, while appellant Flores agreed to be represented by Atty.
Rous. Thereafter, when asked if they understood their said rights, they
replied in the affirmative. The appraisal of their constitutional rights was
done in the presence of their respective lawyers and in the Tagalog dialect,
the language spoken and understood by them. Appellants Arnaldo and
Flores and their respective counsels, Atty. Uminga and Atty. Rous, also
signed and thumbmarked the extra-judicial confessions. Atty. Uminga and
Atty. Rous attested to the veracity of the afore-cited facts in their
respective court testimonies.228[77] Indeed, the appraisal of appellants
constitutional rights was not merely perfunctory, because it appeared
certain that appellants had understood and, in fact, exercised their
fundamental rights after being informed thereof.
Records reflect that appellants Arnaldo and Reyes were likewise
accorded their right to competent and independent counsel during their
respective custodial investigations.
As regards appellant Arnaldo, Atty. Uminga testified that prior to
the questioning of appellant Arnaldo about the incident, Atty. Uminga told
the PAOCTF investigators and agents to give him and appellant Arnaldo
space and privacy, so that they could freely converse. After the PAOCTF
investigators and agents left them, he and appellant Arnaldo went to a
cubicle where only the two of them were present. He interviewed
appellant Arnaldo in the Tagalog language regarding the latters personal
circumstances and asked him why he was in the PAOCTF office and why
he wanted a lawyer. Appellant Arnaldo replied that he wanted to make a
confession about his participation in the kidnapping of the Yao family.
226[75]
227[76]
228[77]

People v. Base, supra note 67.

Records, pp. 312-318.
TSN, 25 September 2001 and 27 September 2001.

311
Thereupon, he asked appellant Arnaldo if the latter would accept his
assistance as his lawyer for purposes of his confession. Appellant Arnaldo
agreed. He warned appellant Arnaldo that he might be sentenced to death
if he confessed involvement in the incident. Appellant Arnaldo answered
that he would face the consequences because he was bothered by his
conscience. He inquired from appellant Arnaldo if he was harmed or
intimidated into giving self-incriminating statements to the PAOCTF
investigators. Appellant Arnaldo answered in the negative. He requested
appellant Arnaldo to remove his shirt for him to check if there were torture
marks on his body, but he found none. He also observed that appellant
Arnaldos appearance and movements were normal. His conference with
appellant Arnaldo lasted for 15 minutes or more. Thereafter, he allowed
the PAOCTF investigators to question appellant Arnaldo.229[78]
Further, Atty. Uminga sat beside appellant Arnaldo during the
inquiry and listened to the latters entire confession. After the taking of
appellant Arnaldos confession, Atty. Uminga requested the PAOCTF
investigators to give him a copy of appellant Arnaldos confession. Upon
obtaining such copy, he read it entirely and thereafter gave it to appellant
Arnaldo. He instructed appellant Arnaldo to read and comprehend the
same carefully. He told appellant Arnaldo to ask him for clarification and
comment if he did not agree or understand any part of his written
confession. Appellant Arnaldo read his entire written confession and
handed it to him. Atty. Uminga asked him if he had objections to it.
Appellant Arnaldo replied in the negative. He then reminded appellant
Arnaldo that the latter could still change his mind, and that he was not
being forced to sign. Appellant Arnaldo manifested that he would sign his
written confession. Later, he and appellant Arnaldo affixed their
signatures to the written confession.230[79]
With respect to appellant Flores, Atty. Rous declared that before
the PAOCTF investigators began questioning appellant, Atty. Rous
interviewed him in Tagalog inside a room, where only the two of them
were present. He asked appellant Flores about his personal circumstances.
Appellant Flores replied that he was a suspect in the kidnapping of the Yao
family, and he wanted to give a confession regarding his involvement in
the said incident. He asked appellant Flores whether he would accept his
assistance as his lawyer. Appellant Flores affirmed that he would. He
asked appellant Flores why he wanted to give such confession. Appellant
Flores answered that he was bothered by his conscience. Atty. Rous
warned appellant Flores that his confession would be used against him in a
court of law, and that the death penalty might be imposed on him.
Appellant Flores told him that he wanted to tell the truth and unload the
burden on his mind. He requested appellant Flores to lift his shirt for the
former to verify if there were torture marks or bruises on his body, but
found none. Again, he cautioned appellant Flores about the serious
consequences of his confession, but the latter maintained that he wanted to
229[78]
230[79]

TSN, 27 September 2001, pp. 5-9.

Id. at 9-15.

312
tell the truth. Thereafter, he permitted the PAOCTF investigators to
question appellant Flores.231[80]
Additionally, Atty. Rous stayed with appellant Flores while the
latter was giving statements to the PAOCTF investigators. After the
taking of appellant Flores statements, he instructed appellant Flores to
read and check his written confession. Appellant Flores read the same and
made some minor corrections. He also read appellant Flores written
confession. Afterwards, he and appellant Flores signed the latters written
confession.232[81]
It is true that it was the PAOCTF which contacted and suggested
the availability of Atty. Uminga and Atty. Rous to appellants Arnaldo and
Flores, respectively. Nonetheless, this does not automatically imply that
their right to counsel was violated. What the Constitution requires is the
presence of competent and independent counsel, one who will effectively
undertake his clients defense without any intervening conflict of
interest.233[82] There was no conflict of interest with regard to the legal
assistance rendered by Atty. Uminga and Atty. Rous. Both counsels had
no interest adverse to appellants Arnaldo and Flores. Although Atty.
Uminga testified that he was a former National Bureau of Investigation
(NBI) agent, he, nevertheless, clarified that he had been separated
therefrom since 1994234[83] when he went into private practice. Atty.
Uminga declared under oath that he was a private practitioner when he
assisted appellant Arnaldo during the custodial investigation.235[84] It
appears that Atty. Uminga was called by the PAOCTF to assist appellant
Arnaldo, because Atty. Umingas telephone number was listed on the
directory of his former NBI officemates detailed at the PAOCTF. Atty.
Rous, on the other hand, was a member of the Free Legal Aid Committee
of the Integrated Bar of the Philippines, Quezon City at the time he
rendered legal assistance to appellant Flores.236[85] Part of Atty. Rous duty
as member of the said group was to render legal assistance to the indigents
including suspects under custodial investigation. There was no evidence
showing that Atty. Rous had organizational or personal links to the
PAOCTF. In fact, he proceeded to the PAOCTF office to assist appellant
Flores, because he happened to be the lawyer manning the office when the
PAOCTF called.237[86] In People v. Fabro,238[87] we stated:
The Constitution further requires that the counsel be independent;
thus, he cannot be a special counsel, public or private prosecutor, counsel
of the police, or a municipal attorney whose interest is admittedly adverse
to that of the accused. Atty. Jungco does not fall under any of said
231[80]
232[81]
233[82]
234[83]
235[84]
236[85]
237[86]
238[87]

TSN, 25 September 2001, pp. 2-14.

Id. at 14-19.
People v. Velarde, supra note 74.
TSN, 27 September 2001, p. 5.
Id.
TSN, 25 September 2001, pp. 4-5.
Id. at 6.
Supra note 65 at 726.

313
enumeration. Nor is there any evidence that he had any interest adverse to
that of the accused. The indelible fact is that he was president of the
Zambales Chapter of the Integrated Bar of the Philippines, and not a
lackey of the lawmen.
Further, as earlier stated, under Section 12(1), Article III of the
1987 Constitution, an accused is entitled to have competent and
independent counsel preferably of his own choice.
The phrase
preferably of his own choice does not convey the message that the
choice of a lawyer by a person under investigation is exclusive as to
preclude other equally competent and independent attorneys from
handling the defense. Otherwise, the tempo of custodial investigation
would be solely in the hands of the accused who can impede, nay,
obstruct, the progress of the interrogation by simply selecting a lawyer
who, for one reason or another, is not available to protect his interest. 239[88]
While the choice of a lawyer in cases where the person under custodial
interrogation cannot afford the services of counsel or where the preferred
lawyer is not available is naturally lodged in the police investigators, the
suspect has the final choice, as he may reject the counsel chosen for him
and ask for another one. A lawyer provided by the investigators is deemed
engaged by the accused when he does not raise any objection to the
counsels appointment during the course of the investigation, and the
accused thereafter subscribes to the veracity of the statement before the
swearing officer.240[89] Appellants Arnaldo and Flores did not object to the
appointment of Atty. Uminga and Atty. Rous as their lawyers, respectively,
during their custodial investigation. Prior to their questioning, appellants
Arnaldo and Flores conferred with Atty. Uminga and Atty. Rous.
Appellant Arnaldo manifested that he would be assisted by Atty. Uminga,
while appellant Flores agreed to be counseled by Atty. Rous. Atty. Uminga
and Atty. Rous countersigned the written extra-judicial confessions of
appellants Arnaldo and Flores, respectively. Hence, appellants Arnaldo
and Flores are deemed to have engaged the services of Atty. Uminga and
Atty. Rous, respectively.
Since the prosecution has sufficiently established that the
respective extra-judicial confessions of appellant Arnaldo and appellant
Flores were obtained in accordance with the constitutional guarantees,
these confessions are admissible. They are evidence of a high order
because of the strong presumption that no person of normal mind would
deliberately and knowingly confess to a crime, unless prompted by truth
and conscience.241[90] Consequently, the burden of proving that undue
pressure or duress was used to procure the confessions rests on appellants
Arnaldo and Flores.242[91]

239[88]
240[89]
241[90]
242[91]

People v. Mojello, 468 Phil. 944, 954 (2004).

People v. Base, supra note 67.
People v. Bagnate, G.R. Nos. 133685-86, 20 May 2004, 428 SCRA 633, 651.
People v. Fabro, supra note 65.

314
In the case at bar, appellants Arnaldo and Flores failed to discharge
their burden of proving that they were forced or coerced to make their
respective confessions. Other than their self-serving statements that they
were maltreated by the PAOCTF officers/agents, they did not present any
plausible proof to substantiate their claims. They did not submit any
medical report showing that their bodies were subjected to violence or
torture. Neither did they file complaints against the persons who had
allegedly beaten or forced them to execute their respective confessions
despite several opportunities to do so. Appellants Arnaldo and Flores
averred that they informed their family members/relatives of the alleged
maltreatment, but the latter did not report such allegations to proper
authorities. On the contrary, appellants Arnaldo and Flores declared in
their respective confessions that they were not forced or harmed in giving
their sworn statements, and that they were not promised or given any
award in consideration of the same. Records also bear out that they were
physically examined by doctors before they made their confessions.243[92]
Their physical examination reports certify that no external signs of
physical injury or any form of trauma were noted during their
examination.244[93] In People v. Pia,245[94] we held that the following
factors indicate voluntariness of an extra-judicial confession: (1)
where the accused failed to present credible evidence of compulsion or
duress or violence on their persons; (2) where they failed to complain
to the officers who administered the oaths; (3) where they did not
institute any criminal or administrative action against their alleged
intimidators for maltreatment; (4) where there appeared to be no
marks of violence on their bodies; and (5) where they did not have
themselves examined by a reputable physician to buttress their claim.
It should also be noted that the extra-judicial confessions of
appellants Arnaldo and Flores are replete with details on the manner in
which the kidnapping was committed, thereby ruling out the possibility
that these were involuntarily made. Their extra-judicial confessions
clearly state how appellants and their cohorts planned the kidnapping as
well as the sequence of events before, during and after its occurrence. The
voluntariness of a confession may be inferred from its language if, upon
its face, the confession exhibits no suspicious circumstances tending to
cast doubt upon its integrity, it being replete with details which could only
be supplied by the accused.246[95]
With respect to appellant Reyess claim that the extra-judicial
confessions of appellants Arnaldo and Flores cannot be used in evidence
against him, we have ruled that although an extra-judicial confession is
admissible only against the confessant, jurisprudence makes it admissible
as corroborative evidence of other facts that tend to establish the guilt of

243[92]
244[93]
245[94]
246[95]

Records, p. 18.
Id. at 19.
229 Phil. 577, 582 (1986).
People v. Bagnate, supra note 90.

315
his co-accused.247[96] In People v. Alvarez,248[97] we ruled that where the
confession is used as circumstantial evidence to show the probability of
participation by the co-conspirator, that confession is receivable as
evidence against a co-accused. In People v. Encipido249[98] we elucidated
as follows:
It is also to be noted that APPELLANTS extrajudicial confessions
were independently made without collusion, are identical with each other
in their material respects and confirmatory of the other. They are,
therefore, also admissible as circumstantial evidence against their coaccused implicated therein to show the probability of the latters actual
participation in the commission of the crime. They are also admissible as
corroborative evidence against the others, it being clear from other facts
and circumstances presented that persons other than the declarants
themselves participated in the commission of the crime charged and
proved. They are what is commonly known as interlocking confession
and constitute an exception to the general rule that extrajudicial
confessions/admissions are admissible in evidence only against the
declarants thereof.
Appellants Arnaldo and Flores stated in their respective
confessions that appellant Reyes participated in their kidnapping of the
Yao family. These statements are, therefore, admissible as corroborative
and circumstantial evidence to prove appellant Reyes guilt.
RIGHT TO COUNSEL
The person who assisted him in court during his arraignment and pre-trial
is not a lawyer.
PEDRO CONSULTA VS. PEOPLE, G.R. No. 17942, February 12,
2009
CARPIO MORALES, J.:
On the matter of accused-appellants claim of having been denied
due process, an examination of the records shows that while accusedappellant was represented by Atty. Jocelyn P. Reyes, who seems not a
lawyer, during the early stages of trial, the latter withdrew her appearance
with the conformity of the former as early as July 28, 2000 and
subsequently, approved by the RTC in its Order dated August 4, 2000.
Thereafter, accused-appellant was represented by Atty. Rainald C. Paggao
from the Public Defenders (Attorneys) Office of Makati City. Since the
accused-appellant was already represented by a member of the Philippine
Bar who principally handled his defense, albeit unsuccessfully, then he
247[96]
248[97]
249[98]

Santos v. Sandiganbayan, 400 Phil. 1175, 1206 (2000).

G.R. No. 88451, 5 September 1991, 201 SCRA 364, 377.
230 Phil. 560, 574 (1986).

316
cannot now be heard to complain about having been denied of due
process.250[3] (Underscoring supplied)
That appellants first counsel may not have been a member of the
bar does not dent the proven fact that appellant prevented Nelia and
company from proceeding to their destination. Further, appellant was
afforded competent representation by the Public Attorneys Office during
the presentation by the prosecution of the medico-legal officer and during
the presentation of his evidence. People v. Elesterio251[4] enlightens:
As for the circumstance that the defense counsel turned out later
to be a non-lawyer, it is observed that he was chosen by the accused
himself and that his representation does not change the fact that Elesterio
was undeniably carrying an unlicensed firearm when he was arrested. At
any rate, he has since been represented by a member of the Philippine bar,
who prepared the petition for habeas corpus and the appellants brief.
(Underscoring supplied)
Read also:
1. The right to counsel, 57 SCRA 481
1-a. P vs. Nolasco, 163 SCRA 623
1-b. P vs. Hernandez, 162 SCRA 422
1-c. P. vs. Ampo-an, July 4, 1990
1-d. P. vs. Saludar, July 31, 1990
1-e. P. vs. Kidagan, August 20, 1990
1-f. Estacio vs. Sandiganbayan, 183 SCRA 12
1-g. P. vs. Buenaflor, 181 SCRA 225
2. P vs. Tampus, 96 SCRA 624
3. P vs. Taylaran, 108 SCRA 373
4. P vs. Tawat, 129 SCRA 431
5. P vs. Marcos, 147 SCRA 204 (Note that this
criticized by
constitutionalists)
6. P vs. Ladrera, 150 SCRA 113
7. P. Nulla, 153 SCRA 471
8. P vs. Marquez, 153 SCRA 700
9. P vs. Olvis, 154 SCRA 513
10. P vs. Caguioa, January 17, 1980
ll. P vs. Pecardal, 145 SCRA 624
12. P vs. Lasac, 148 SCRA 624
13. P vs. Pena, 80 SCRA 589
14. P vs. Jara, 144 SCRA 516

decision is widely

How about if the lawyer who assisted him during custodial

investigation is a public attorney who was not chosen by the accused
himself but given to him free of charge? The extrajudicial confession is
inadmissible as evidence.
250

[3]

251

[4]

Rollo, p. 169
G.R. No. 63971, May 9, 1989, 173 SCRA 243, 249.

317

Read:
P. vs. Alegria, September 28, 1990
Could the Fiscal also represent the accused during custodial
investigation to satisfy the requirement of the Constitution that the accused
is assisted by counsel? No. The Fiscal is the counsel for the State, not the
accused or the suspect.
Read:
P. vs. Matos-Viduaya, September 11, 1990
5. Right to remain silent and to counsel and the right to be informed of
such rights; cases in general/when does these rights demandable? Effect of
its non-observance by the investigator
Read:
1. P vs. Albofera, 152 SCRA 123
1-a. P vs. Lasanas, 152 SCRA 27
1-b. P vs. Olvis, 154 SCRA 513
1-c. P vs. Capitin, 165 SCRA 47
1-a. Gamboa vs. Cruz, 162 SCRA 642
1-b. P vs. Hizon, 163 SCRA 760
1-c. P vs. Velasco, 110 SCRA 319
2. Diokno vs. Enrile, 110 SCRA 140
3. Morales vs. Ponce Enrile, 121 SCRA 538
4. P vs. Rojas, January 8, l987
5. P vs. Santiago, January 7,1987
6. P vs. Decierdo, 149 SCRA 496
5-a. Is the right to counsel indispensable in non-criminal proceedings?
Read:
1. Nera vs. Auditor Genral, 164 SCRA 1
6. Presumptions on extrajudicial confessions(that official acts were
regularly performed as against the presumption against waiver of
constitutional rights)
Read:
1. P vs. Duero, 104 SCRA 379
2. P vs. Jara, 144 SCRA 516
3. P vs. Abano, 145 SCRA 555
4. P vs. Tolentino, 145 SCRA 597

318
5. P vs. Salig, 133 SCRA 59
6. P vs. Cruz, 133 SCRA 426
7. P vs. Prudente,, 133 SCRA 651
8 P vs. Trinidad, 162 SCRA 714, when the
regularity does not apply
7. Who can object to the admissibility of an

presumption of

extrajudicial confession?

Read:
1. Stonehill vs. Diokno, supra
2. P vs. Jara, 144 SCRA 576
3. P. vs. loveria, July 2, 1990
8. Inadmissible as evidence
a. The doctrine of the "fruit of the poisoned

tree"

Even if the extrajudicial confession is inadmissible as evidence, accused

still held guilty by the Supreme Court.
PEOPLE VS. ROLANDO FELIXMINIA y CAMACHO
GR No. 125333, March 20, 2002
En Banc
Facts:
1. In the morning of September 19, 1995, accused-appellant and his cousin,
RONNIE GARCIA were drinking gin in a canteen in Urdaneta,
Pangasinan;
2. At around 10 a.m. of the same day, Rosita Mangunay saw both persons
walking along Ambrosio St., in the poblacion and noticed that they
smelled liquor when they greeted her;
3. In the early afternoon of the same day, accused-appellant and his cousin
went to look for 6-year old Maria Lourdes Galinato, also known as Tisay
and found her playing inside a jeepney and took her;
4. At around 2:45 p.m. of the same day, Mangunay again saw the accusedappellant walking along Ambrosio St., carrying Tisay who was crying and
struggling. She claimed that she clearly saw the accused-appellant since
they were walking towards each other coming from opposite directions;
5. Before 3 to 4 p.m., prosecution witness Natividad Bernardo, saw accusedappellant pass their house carrying a child who looked about 5-6 years old.

319
6. At about the same time, witness Leah Magno saw the accused-appellant
carrying a child was seen heading towards the wooded area in the
Macalong River;
7. By 5 p.m. to 6:30 p.m. of that same day, Magno saw accused-appellant
walking alone to town coming from the direction of the Macalong River;
8. Meanwhile, the parents of Tisay were frantically searching for their child
and when their search proved futile, they reported the matter to the
Barangay Captain and to the Police;
9. Upon receipt of the information that the child was last seen with the
accused-appellant, the police together with the Barangay Captains of
Camantiles and Bayaoas, Urdaneta, Pangasinan, proceeded to the house of
the accused-appellant;
10. As they approached the house, the accused-appellant jumped out of the
window carrying a black bag. The police authorities gave chase and finally
caught him after twenty (20) exhausting hours;
11. After his arrest, accused-appellant was brought to the Urdaneta Police
Station where he admitted that he raped, killed and buried Maria Lourdes
near the Macalong River in Barangay San Vicente, Urdaneta, Pangasinan,
while UNDER INVESTIGATION WITHOUT THE ASSISTANCE OF A
LAWYER. INDEED, THE BODY OF TISAY WAS FOUND IN THE
PLACE WHICH HE DESCRIBED DURING HIS CUSTODIAL
INVESTIGATION.
12. After trial, the trial court (RTC 45 presided over by JUDGE JOVEN
COSTALES) rendered a judgment of conviction and imposing the penalty
of death to the accused-appellant. The court admitted as evidence the
extrajudicial confession of the accused-appellant and used the same as
one of the grounds in support of the judgment of conviction.
1. I S S U E S
1. Is the extrajudicial confession of the accused appellant admissible in
evidence?
2. Whether the lower court erred in convicting in convicting the accusedappellant?
Held:
1
The alleged extrajudicial confession of the accused while under
custodial investigation and without the assistance of counsel is
inadmissible in evidence despite the fact that he was allegedly appraised
of his constitutional rights to remain silent and to counsel.

320

This is so because under the 1987 Constitution, the said rights

could not be waived except in the presence of counsel. As such, in
accordance with the doctrine of the fruit of the poisoned tree, the same is
inadmissible in evidence.
Any information or admission given by a person while in custody
which may appear harmless or innocuous at the time without the
competent assistance or an independent counsel should be struck down as
inadmissible.
2
Though the extrajudicial confession of the accused-appellant is
inadmissible as evidence, his conviction by the trial court is correct. This
is so because [1] the compromising circumstances were duly proven which
were consistent with each other and which lead with moral certainty to the
conclusion that he was guilty of the crime charged; and [2] the totality of
such circumstances eliminated beyond doubt the possibility of his
innocence. In People vs. Mahinay, it was held that conviction may be had
on circumstantial evidence provided the following requisites are present:
[a] there is more than one circumstance; [b] the facts from which the
inferences are derived are proven; and [c] the combination of all
circumstances is such as to produce a conviction beyond reasonable doubt.
The evidence in this case are more than sufficient to prove the
accused-appellants beyond reasonable doubt. Circumstantial evidence is
not a weaker form of evidence vis--vis direct evidence and cases have
recognized that circumstantial evidence in its weight and probative force,
may surpass direct evidence in its effect upon the Supreme Court.
(NOTE: The indemnification for the death of a person in a rape with
Homicide cases was increased from P50,000.00 to P125,000.00. The said
indemnity shall also be applicable where the death penalty is authorized
by applicable amendatory laws))
b. The exclusionary rule, 145 SCRA 700
Read:
1. P vs. Burgos, 144 SCRA 516
2. P vs. Alcaraz,136 SCRA 74
3. Does it also include the confession of a
accused?
Read:
1. P vs. Bombesa, 162 SCRA 402
2. p. vs. Yutuc, July 26, 1990

witness, not the

321

9. Sec. 12(2)
Read:
1. Dizon vs. Gen. Eduardo, May 3,1988
2. P vs. Eligino, August 11,1988
3. Contado vs. Tan, April 15, 1988
10. Extrajudicial confession; when admissible or

inadmissible

Read:
1. The admissibility of an extrajudicial
prosecution,142 SCRA 110
2. Admissibility of an extrajudicial
and 10 SCRA 520

confession in a criminal
confession,135

3. Inadmissibility of an admission obtained by

SCRA 234
4. Confession as evidence against the accused, 96
Read:
5. P vs. Camalog, January 31, 1989
5-a. P vs. Capulong, 160 SCRA 533
5-b. P vs. Lagahan, December 8, 1988
5-c. P vs. Dino, 160 SCRA 197
5-d. P vs. Caramonte, 94 SCRA 150
5-e. P vs. Enciso, 160 SCRA 728
5-d. P vs. Abano, 145 SCRA 565
5-e. P vs. Quizon, 142 SCRA 362
5-f. P vs. Olvis, 154 SCRA 513
5-g. P vs. Robles, 104 SCRA 450
5-h. P vs. Eligino, 164 SCRA 260
5-i. P vs. Abejero, May 17,l980
5-j. P. vs. Bagano, 181 SCRA 34
5-k. P. vs. Estevan, 186 SCRA 184
5-l. P. vs. Ramos, 186 SCRA 184
5-m. P. vs. Flores, 186 SCRA 303
5-n. P. vs. Jungco, 186 SCRA 714
5-o. P. vs. Arsenio, 184 SCRA 205
6. P vs. Villanueva, 128 SCRA 488
7. P vs. Dejaresco, 129 SCRA 576
8. P vs. Tuvera, 130 SCRA 169
9. P vs. Maternal, 130 SCRA 625
10. P vs. Nilos, 127 SCRA 207

SCRA 419
force, 114
SCRA 637

322
11. P vs. Sanchez, 132 SCRA 103
12. P vs. Pizarro, 131 SCRA 418
13. P vs. Sabilano, 132 SCRA 83
14. P vs. Veloso, 148 SCRA 60
15. Magtoto vs. Manguera, 63 SCRA 4
16. P vs. Gapasin, 145 SCRA 178
17. P vs. Palo, 147 SCRA 178
18. P. vs. De Jesus, 145 SCRA 521
19. P vs. Pia, 145 SCRA 581
20. P vs. Encipiado, 146 SCRA 478
21. P vs. Canumay, 130 SCRA 301
22. P vs. Marino, 130 SCRA 595
23. P vs. Natipravat, 145 SCRA 483
24. P vs. Cruz, 133 SCRa 426--when confession is
valid
25. P. vs. De La Cruz, 183 SCRA 763---when confession is inadmissible
but accused is still liable
11. Evidence of lack of cvoluntariness
Read:
1. P vs. Jara, 144 SCRA 516
2. P vs. Abayon, 114 SCRA 197
12. Is the testimony of the arresting officer on the
confession of the accused admissible?

alleged oral

Read:
1. P vs. Dy, 158 SCRA 111
CHAPTER XIII - THE CONSTITUTIONAL RIGHT TO BAIL
Section 13. All persons, except those
charged with offenses punishable by
reclusion perpetua when the evidence of
guilt is strong, shall before conviction, be
bailable by sufficient sureties, or be released
on recognizance as may be provided by law.
The right to be bail shall not be impaired
even when the privilege of the writ of
habeas corpus is suspended. Excessive bail
shall not be required.
1. The right to bail, 104 SCRA 372
2. Bail, 81 SCRA 188

323
Kinds of bail; when not applicable.
Recognizance/bail for a convict
ATTY. JULIANA ADALIM-WHITE VS. JUDGE ARNULFO
BUGTAS, RTC 2 BORONGAN, SAMAR, 475 SCRA 175
Austria-Martinez, J.
Facts:
Manuel Bagaporo, Jr. was convicted of frustrated murder and was
sentenced four years and two months to eight years and one day of
imprisonment. He started serving his sentence and subsequently, he filed
an application for release on recognizance. In support of his application,
the Provincial Jail Warden issued a certification that Bagaoporo has been
confined at the Provincial Jail since February 9, 1996 and is already
entitled to parole. Another certification was issued by the Supervising
Parole and Probation Officer showing that Bagaporo applied for parole in
lieu of the DOJs Maagang Paglaya Program.
By virtue of the above certifications, respondent judge ordered the
release of Bagaporo upon recognizance of the Provincial Jail Warden of
Eastern Samar. He likewise justified the same based on the rule that bail
is discretionary upon conviction by the RTC of an offense not punishable
by death, reclusion perpetua or life imprisonment.
Held:
Respondent Judge is guilty of gross ignorance of the law for
ordering the release of Bagaporo pending the approval of his application
for parole and before the completion of the minimum period of the
sentence imposed upon him.
It is patently erroneous to release a convict on recognizance.
Section 24, Rule 114 provides that there shall no bail for a convict after
final judgment. The only exception is when the convict applies for
Probation before he commences to serve his sentence and that the offense
and the penalty for the offense is within the purview of the Probation
Law.
Sections 5 and 16 of Rule 114 of the Rules of Court (on the
different kinds of bail) APPLIES ONLY TO AN ACCUSED
UNDERGOING PREVENTIVE IMPRISONMENT DURING TRIAL
OR ON APPEAL. THEY DO NOT APPLY TO A PERSON
CONVICTED BY FINAL JUSGMENT AND ALREADY SERVING
SENTENCE.

324
Judge Bugtas was therefore fined P40,000.00 for gross ignorance
of the law and sternly warned that a repetition of the same or similar act
shall be dealt with more severely.
3. Read:
Excessive bail:
1. De la Camara vs. Enage, 41 SCRA 1
1-a. Pestano vs. Judge Velasco, July 3, 1990
Waiver of the right to bail:
1-b. P. vs. Donato, June 5, 1991
2. Almeda vs. Villaluz, 66 SCRA 38
3. Marcos vs. Cruz, 67 and 70 Phil.
4. Villasenor vs. Abano, 21 SCRA 312
5. P vs. IAC, January 10,1987, 147 SCRA 219
6. Manotoc vs. CA, May 30,1986
7. Garcia vs. Domingo, 52 SCRA 143
8. P vs. San Diego, 26 SCRA 522

4. See Section 10, Rule 114, 1985 Rules on Criminal

Procedure
a. Procedure when prosecutor does not object to the petition for
bail in capital offenses:
Bail in Extradition cases.
1
UNITED STATES VS. JUDGE PURUGGANAN & MARK
JUMENEZ
November, 2002
A person facing extradition proceedings is not entitled to bail even
if the crime he was charged of in a foreign country is bailable. This is so
because the constitutional provision on the right to bail under Art. III of
the 1987 Constitution applies only to criminal cases, not in extradition
proceedings.

Right to notice and hearing before the

issuance of a warrant of arrest in extradition
case when earlier, the extraditee was
allowed to be out on bail by the court. The
bail could not be cancelled without hearing.
2
EDUARDO RODRIGUEZ VS. THE PRESIDING JUDGE, RTC 17,
MANILA, 483 SCRA 290

325

Quisumbing, J.
In SECRETARY OF JUSTICE VS. JUDGE LANTION, 322
SCRA 160 (The Mark Jimenez Case) , the Supreme Court on a 9-6 vote
held that the extraditee is entitled to notice and hearing even when a
request for extradition by another country is still being evaluated.
However, on Motion for Reconsideration in the same case, in a 9-6
decision, the Supreme Court held that the prospective extraditee is not
entitled to notice and hearing while his case is still under evaluation
because this would defeat the purpose of the arrest warrant since it could
give warning that respondents would be arrested and even encourage them
to flee but entitled to notice and hearing if the case is already filed in
court.
It is a different matter if at first, the extraditee was allowed bail.
The cancellation of his bail bond may be made only after notice and
hearing. Otherwise, his right to due process of law will be violated.
(NOTE: In the case of US vs. Judge Purugganan, 389 SCRA 623),
the Supreme Court held that the extraditee is not entitled to post a bond
even if the crime he was charged of abroad is a bailable offense. This is so
because of the possibility of flight.)
3
GOVERNMENT
OF
HONGKONG
SPECIAL
ADMINISTRATIVE
REGION
VS.
HON.
FELIXBERTO OLALIA, JR., 521 SCRA 470
In UNITED STATES VS. JUDGE PURUGGANAN, 389 SCRA
623, it was held that the constitutional provision on bail does not available
in extradition proceedings. It applies only in criminal proceedings because
of the word conviction.
However, the modern trend in public international law is the
primacy placed on the worth of the individual person and the sanctity of
human rights. As such, the right to bail was applied in a deportation
proceedings, i.e., MEJOFF VS. DIRECTOR OF PRISONS, 90 Phil. 70
[1951] and justified the same with the Universal declaration of Human
Rights. If the right to bail is available in deportation cases, then there is no
reason why it is not allowed in extradition proceedings.
BEFORE A PROSPECTIVE EXTRADITEE IS ALLOWED
TO PUT UP BAIL, HE MUST PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT HE IS NOT A FLIGHT RISK
AND WILL ABIDE WITH ALL ORDERS AND PROCESSES OF
THE EXTRADITION COURT.

326

CHAPTER XIV - DUE PROCESS

IN CRIMINAL PROCEEDINGS
1. In general:
1. P vs. Terrobias, 103 SCRA 321
Presumption of innocence prevails over the presumption of regularity
in the performance of official duties of the police authorities and
Presumption of innocence resulting in acquittal as a result on
conflicting and inconsistent testimonies of the prosecutions witnesses:
Non-compliance of Section 21, Republic
Act No. 9165, violates the presumption of
innocence on the part of the accused and
therefore, he should be acquitted.
PEOPLE OF THE PHILIPPINES VS. RONALDO DE
GUZMAN, G.R. No. 186498, March 26, 2010
On June 10, 2003, a confidential informant reported De Guzmans drug
pushing activities to Alcala, Pangasinans Chief of Police, Sotero Soriano, Jr.
Soriano immediately formed a team to conduct a buy-bust operation. After a short
briefing, the team proceeded to De Guzmans house. Once there, the confidential
informant introduced appellant to Senior Police Officer (SPO)1 Daniel Llanillo,
who was designated as poseur-buyer. Llanillo tried to buy P200 worth of shabu.
He handed two marked P100 bills to De Guzman, and the latter, in turn, gave him
two heat-sealed transparent plastic sachets containing what was suspected as
shabu. Thereafter, Llanillo gave the prearranged signal to the rest of the team.
Appellant was arrested and frisked. The team recovered from De Guzman two
packs of empty transparent sachets, three disposable lighters, and P3,380.00 in
cash, which included the marked money paid by SPO1 Llanillo. The team then
brought De Guzman to the police station in Alcala, Pangasinan.
At the police station, De Guzman and the items seized during the buy-bust
operation were turned over to the police investigator, SPO3 Eduardo Yadao. SPO3
Yadao entered the incident in the police blotter. He then placed his initials on the
packets of suspected shabu, which were later submitted to the Philippine National
Police (PNP) Crime Laboratory in Urdaneta City. Confirmatory tests revealed that
the substance in the packets that appellant handed to SPO1 Llanillo was indeed
shabu.
At the trial, appellant denied the charges against him. He claimed that, on
the morning of June 10, 2003, he was on the second floor of his house watching
television when he was informed by his wife that police officers were looking for
him. He claimed that SPO1 Llanillo informed him about a report that he (De
Guzman) was repacking shabu, which he denied. Thereafter, the police officers

327
frisked him and took the P3,000.00 from his pocket. The police officers also
searched the cabinet, where his television was, and found a lighter. Then, he was
handcuffed and brought to the police station.
After trial, the RTC rendered a decision, finding De Guzman guilty
beyond reasonable doubt of violating R.A. No. 9165. He was sentenced to life
imprisonment and to pay a fine of P500,000.00.
De Guzman elevated the matter to the Supreme Court on Petition for
Review after the Court of Appeals affirmed the RTC Decision. He argues that the
prosecution failed to show that the police officers complied with the mandatory
procedures under R.A. No. 9165. In particular, he points to the fact that the
seized items were not marked immediately after his arrest; that the police officers
failed to make an inventory of the seized items in his presence or in the presence
of his counsel and of a representative from the media and from the Department of
Justice (DOJ); and that no photographs were taken of the seized items and of
appellant. Appellant also claims that the unbroken chain of custody of the
evidence was not established. Further, appellant contends that the failure of the
police officers to enter the buy-bust operation in the police blotter before the said
operation, the lack of coordination with the Philippine Drug Enforcement Agency
(PDEA), and the failure to observe the requirements of R.A. No. 9165 have
effectively overturned the presumption of regularity in the performance of the
police officers duties.
HELD:
A review of the records of this case reveals that circumstances warrant a
reversal of the trial courts decision.

The Constitution mandates that an accused in a criminal case shall be

presumed innocent until the contrary is proven beyond reasonable doubt. The
prosecution is laden with the burden to overcome such presumption of innocence
by presenting the quantum of evidence required.
Consequently, courts are required to put the prosecution evidence through
the crucible of a severe testing, and the constitutional right to presumption of
innocence requires them to take a more than casual consideration of every
circumstance or doubt favoring the innocence of the accused.
When the circumstances are capable of two or more inferences, as in this
case, one of which is consistent with innocence and the other is compatible with
guilt, the presumption of innocence must prevail, and the court must acquit.
The duty to prove the guilt of an accused is reposed in the State. Law
enforcers and public officers have the duty to preserve the chain of custody over
the seized drugs. This guarantee of the integrity of the evidence to be used against
an accused goes to the very heart of his fundamental rights.

328
In a prosecution for illegal sale of dangerous drugs, the following elements
must be proven: (1) that the transaction or sale took place; (2) that the corpus
delicti or the illicit drug was presented as evidence; and (3) that the buyer and
seller were identified. What is material is the proof that the transaction or sale
actually took place, coupled with the presentation in court of the prohibited or
regulated drug. The delivery of the contraband to the poseur-buyer and the receipt
of the marked money consummate the buy-bust transaction between the
entrapping officers and the accused. The presentation in court of the corpus
delicti the body or the substance of the crime establishes the fact that a crime
has actually been committed.
Contrary to De Guzmans contention, the trial court correctly found that
the buy-bust transaction took place. The buyer (SPO1 Llanillo) and seller (De
Guzman) were both identified and the circumstances of how the purported sale of
the illegal drugs took place were clearly demonstrated. Thus, the prosecution
successfully established the first and third elements of the crime. However, there
is a problem in the prosecutions effort to establish the integrity of the corpus
delicti.
The identity of the prohibited drug must be established with moral
certainty. Apart from showing that the elements of possession or sale are present,
the fact that the substance illegally possessed and sold in the first place is the
same substance offered in court as exhibit must likewise be established with the
same degree of certitude as that needed to sustain a guilty verdict. The corpus
delicti should be identified with unwavering exactitude.
The chain of custody requirement performs this function in that it ensures
that unnecessary doubts concerning the identity of the evidence are removed.
Section 21 of R.A. No. 9165 states:
Section 21. Custody and Disposition of Confiscated,
Seized, and/or Surrendered Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. The PDEA shall take charge and have custody of all
dangerous drugs, plant sources of dangerous drugs, controlled
precursors
and
essential
chemicals,
as
well
as
instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the
following manner:
(1) The apprehending team having initial custody and
control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same
in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected

329
public official who shall be required to sign the copies of
the inventory and be given a copy thereof.
The Court finds that the apprehending officers failed to comply with the
guidelines set under R.A. No. 9165 and its IRR.
SPO1 Llanillo himself admitted that the marking of the seized items was
done in the police station and not immediately after the buy-bust operation.
The failure to follow the procedure mandated under R.A. No. 9165 and its
IRR must be adequately explained. The justifiable ground for non-compliance
must be proven as a fact. The court cannot presume what these grounds are or that
they even exist.
Accordingly, non-compliance with the procedure shall not render void and
invalid the seizure and custody of the drugs only when: (1) such non-compliance
is attended by justifiable grounds; and (2) the integrity and the evidentiary value
of the seized items are properly preserved by the apprehending team. There must
be proof that these two (2) requirements were met before such non-compliance
may be said to fall within the scope of the proviso.
In this case, it was admitted that it was SPO3 Yadao, the assigned investigator,
who marked the seized items, and only upon seeing the items for the first time at
the police station. Moreover, there was no physical inventory made or
photographs of the seized items taken under the circumstances required by R.A.
No. 9165 and its IRR. There was also no mention that representatives from the
media and from the DOJ, and any elected official, were present during this
inventory. The prosecution never explained the reasons for these lapses.
As a method of authenticating evidence, the chain of custody rule requires
that the admission of an exhibit be preceded by evidence sufficient to support a
finding that the matter in question is what the proponent claims it to be. It would
include testimony about every link in the chain, from the moment the item was
picked up to the time it is offered in evidence, in such a way that every person
who touched the exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness possession, the
condition in which it was received and the condition in which it was delivered to
the next link in the chain. These witnesses would then describe the precautions
taken to ensure that there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the same. Indeed,
it is from the testimony of every witness who handled the evidence that a reliable
assurance can be derived that the evidence presented in court and that seized from
the accused are one and the same.
Accordingly, the failure to establish, through convincing proof, that the
integrity of the seized items has been adequately preserved through an unbroken
chain of custody is enough to engender reasonable doubt on the guilt of an
accused. Reasonable doubt is that doubt engendered by an investigation of the

330
whole proof and an inability after such investigation to let the mind rest upon the
certainty of guilt. Absolute certainty of guilt is not demanded by the law to
convict a person charged with a crime, but moral certainty is required as to every
proposition of proof requisite to constitute the offense. A conviction cannot be
sustained if there is a persistent doubt on the identity of the drug.

Indeed, the prosecutions failure to prove that the specimen submitted for
laboratory examination was the same one allegedly seized from appellant is fatal
to the prosecutions case.
Finally, the prosecution cannot find solace in its invocation of the
presumption of regularity in the apprehending officers performance of official
duty.
The presumption of regularity in the performance of official duty
cannot by itself overcome the presumption of innocence nor constitute proof
beyond reasonable doubt. Moreover, the failure to observe the proper procedure
negates the operation of the presumption of regularity accorded to police officers.
As a general rule, the testimonies of the police officers who apprehended the
accused are accorded full faith and credit because of the presumption that they
have performed their duties regularly. But when the performance of their duties is
tainted with failure to comply with the procedure and guidelines prescribed, the
presumption is effectively destroyed.
Thus, even if the defense evidence is weak, the prosecutions whole case
still falls. The evidence for the prosecution must stand or fall on its own weight
and cannot be allowed to draw strength from the weakness of the defense.
ELPIDIO BONDAD, JR. VS. PEOPLE, G.R. No. 173804, EDecember
10, 2008
CARPIO MORALES, J.:
Elpidio Bondad, Jr., y Burac (appellant) was charged before the
Regional Trial Court (RTC) of Marikina City 252[1] for violation of Section
5, paragraph 2(3), Article II of Republic Act No. 9165 (R.A. No. 9165) or
the Comprehensive Dangerous Drugs Act of 2002, allegedly committed as
follows:253[2]
That on or about the 29th day of January 2004, in the City of
Marikina, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, without being authorized by law, did then and
there willfully, unlawfully, feloniously and knowingly sell to poseur buyer
0.02 gram of Methamphetamine Hydrochloride (shabu) contained in one
252

[1]

253

[2]

Rollo, pp. 73-74.

Records, p. 2.

331
(1) heat-sealed transparent plastic sachet, a dangerous drug, in violation of
the above-cited law.254[3] (Underscoring supplied)
He was likewise charged for violation of Section 11, par. 2(3),
Article II also of R.A. No. 9165, allegedly committed as follows:
That on or about the 29th day of January 2004, in the City of
Marikina, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, without being authorized by law to possess or
otherwise use any dangerous drugs, did then and there willfully,
unlawfully and feloniously have in his possession direct custody and
control 0.04 gram of white crystalline substance contained in two (2)
heat-sealed plastic sachets which gave positive result to the test for
Methamphetamine Hydrochloride (shabu), which is a dangerous drug, in
violation of the above-cited law.255[4] (Underscoring supplied)
At around 7:05 p.m. of January 29, 2004, while PO2 Ferdinand
Brubio, PO1 Christopher Anos, and PO1 Roberto Muega were at the
Station Anti Illegal Drug Special Operations Task Force (SAIDSOTF),
Office of the Marikina City Police Station, PO2 Nelson Arribay arrived
together with a confidential informant. The confidential informant
reported, among other things, about the rampant sale of shabu in a billiard
hall along Bonifacio Avenue, Barangka, Marikina City and named a
certain alias Jun as the vendor.
The Chief of the SAIDSOTF, P/Sr. Insp. Ramchrisen Haveria, Jr.,
at once formed a buy-bust team composed of, among others, PO2 Ramiel
Soriano and PO2 Dano who was designated as the poseur-buyer. PO2
Dano was given a one hundred peso bill bearing Serial No. Q487945 to be
used as buy-bust money. It was agreed that PO2 Danos removal of his
cap would signal that the buy-bust was consummated.
The conduct of a buy-bust operation was recorded in the police
blotter and was coordinated with the Philippine Drug Enforcement Agency
(PDEA) which gave it control number NOC-012904-28.
The buy-bust team, together with the confidential informant,
proceeded to 3 Cs billiard hall at the corner of M. Cruz St. and Bonifacio
Avenue in Barangka, Marikina City. On entering the hall, the confidential
informant pointed to appellant who was then holding a cue stick beside the
billiard table as the alias Jun. The confidential informant approached
appellant and talked to him. Within minutes, appellant approached PO2
Dano and asked him if he wanted to buy shabu, to which PO2 Dano
answered piso lang. Appellant at once took out a Vicks container
from his right front pocket256[5] which, when opened, yielded heat-sealed
plastic sachets containing substances suspected to be shabu. From the
254

[3]

255

[4]

256

[5]

Records, p. 2 - Information dated February 2, 2004.

Id. at p. 6.
No specification if it was a pocket of the shirt or of the pants.

332
container, appellant drew out one sachet in exchange for which PO2 Dano
gave the marked one hundred peso bill. At that instant, PO2 Dano
removed his cap.
As the back-up police officers were closing-in, PO2 Dano grabbed
appellants arm, identified himself, and apprised appellant of his
constitutional rights. Upon PO2 Danos order, appellant returned the buybust money, handed the Vicks container, and gave his name as
Elpidio Burac Bondad, Jr.
Still at the place of arrest, PO2 Dano placed the markings EBBED BUYBUST 01/29/04 on the substance-filled sachet sold to him, and
EBB-ED, POS 1 and 2, 01/29/04 on the sachets that remained inside the
Vicks container.
The buy-bust team thereupon brought appellant and the seized
items to the Marikina City Police Station where a memorandum dated
January 29, 2004257[6] was prepared by P/Sr. Insp. Chief Haveria, Jr.,
addressed to the Chief of the Eastern Police District Crime Laboratory
Office, requesting for the conduct of laboratory examination on the seized
items to determine the presence of dangerous drugs and their weight. PO2
Dano also requested that appellant be subjected to a drug test.258[7]
The following day or on January 30, 2004, at 3:00 P.M., upon
receipt of three sachets, a laboratory examination was conducted thereon
by Police Senior Inspector Annalee R. Forro, Forensic Chemical Officer of
the Eastern Police District Crime Laboratory Office, who, in Physical
Science Report No. D-0094-04E259[8], recorded, among other things, the
specimen submitted, her findings and conclusion as follows:
SPECIMEN SUBMITTED:
Three (3) heat-sealed transparent plastic sachets with markings
marked as A through C respectively, each containing white crystalline
substance with following recorded net weights and markings:
A = 0.02 gram EBB-ED BUYBUST 01/29/04
B = 0.02 gram EBB-ED POSS 1 01/29/04
C = 0.02 gram EBB-ED POSS 2 01/29/04
x-x-x
F I N D I N G S:

x-x-x

x-x-x

x x x

Qualitative examination conducted on the above-stated specimen gave

POSITIVE result to the tests for Methamphetamine Hydrochloride, a
dangerous drug.
257

[6]

258

[7]

259

[8]

Id. at p. 15
TSN, June 15, 2004, p. 41
Records, p. 17

333

x-x-x

x-x-x

x-x-x

C O N C L U S I O N:
Specimens A through C contain Methamphetamine Hydrochloride, a
dangerous drug. 260[9] (Italics and emphasis in the original)
Denying the charges against him, appellant, a former police officer,
claimed that he was framed up and gave the following version:
On January 29, 2004, while he was playing inside 3 Cs billiard
hall, PO2 Brubio, whom he knew was a policeman, entered the billiard
hall. After greeting PO2 Brubio in Bicolano, he continued playing but
PO2 Brubio suddenly handcuffed him and asked him Sumama ka muna.
Another person who was at his back pushed him out of the billiard hall in
the course of which he felt PO2 Brubio reaching his (appellants) right
front pocket,261[10] drawing him to restrain the hand of PO2 Brubio, telling
him pera ko yan!
Aware that his son was inside the billiard hall, appellant summoned
and handed him his wallet containing P2,000. PO2 Brubio, however, took
the wallet from his son, telling him Huwag ka makialam dito. He was
then made to board a car and taken to the Office of the SAIDSOTF at the
police station.
Appellants defense was corroborated by his son Christian Jeffrey
C. Bondad, and Roberto U. Mata who was a spotter (referee) at the
billiard hall at the time appellant was arrested.
Finding for the prosecution, the trial court convicted appellant in
both charges, disposing as follows:
WHEREFORE, foregoing premises considered, the Court finds the
accused ELPIDIO BONDAD, JR. y BURAC guilty beyond reasonable
doubt of the crime of Violation of Sec. 11 par. 2(3), Art. II of R.A. 9165
and is sentenced to suffer the penalty of imprisonment for a period of
TWELVE (12) YEARS and ONE (1) DAY and to pay the fine of THREE
HUNDRED THOUSAND PESOS (PhP300,000.00) as provided for in
Sec. 11 par. 2(3), Art. II of RA 9165. The accused is likewise found
guilty of the crime of Violation of Sec. 5 Art. II of RA 9165 and is
sentenced to suffer the penalty of LIFE IMPRISONMENT and fine of
FIVE HUNDRED THOUSAND PESOS (PhP500,00.00) pursuant to Sec.
5, Art. II of RA 9165 the methamphetamine hydrochloride (shabu) is
ordered confiscated in favor of the government for proper destruction by
the proper agency.

260
261[10]

[9]

Exhibit C, folder of exhibits, p. 2

There is also no specification if it was a pocket of the shirt or the pants

334
SO ORDERED.262[11] (Underscoring supplied)
By Decision of February 8, 2006,263[12] the Court of Appeals
affirmed the trial courts decision with modification, disposing as follows:
WHEREFORE, in the light of the foregoing, the appeal is
DISMISSED for lack of merit. The assailed decision is AFFIRMED with
the MODIFICATION that the accused-appellant is sentenced to suffer an
indeterminate penalty of imprisonment of twelve (12) years and one (1)
day, as minimum, to thirteen (13) years, as maximum and to pay a fine of
Three Hundred Thousand Pesos (P300,000.00).
SO ORDERED.264[13] (Underscoring supplied)
Specifically with respect to the charge of possession of shabu, the
appellate court held:
The evidence for the prosecution fully proved beyond reasonable
doubt the elements necessary to successfully prosecute a case for illegal
possession of a prohibited drug, namely, (a) the accused is in possession of
an item or an object identified to be a prohibited or a regulated drug, (b)
such possession is not authorized by law and (c) the accused freely and
consciously possessed said drug.
Under Section 11, Par. 2 [3] of R.A. 9165, the mere act of
possessing any dangerous drug consummates the crime. There is no doubt
that the charge of illegal possession of shabu was proven beyond
reasonable doubt since the accused-appellant knowingly possessed plastic
sachets with white crystalline granules, without legal authority at the time
he was caught during the buy-bust operation. The white crystalline
granules found in his possession, upon laboratory examination, were
positively identified as methamphetamine hydrochloride or shabu, a
dangerous drug.265[14] (Italics in the original, underscoring supplied)
Hence, the present Petition for Review on Certiorari, appellant
faulting the appellate court:
II.
. . . IN ADMITTING THE EVIDENCE OF THE
PROSECUTION DESPITE CLEAR VIOLATION OF SECTION 21 (1)
OF R.A. 9165;

262

[11]

263

[12]

264
265

CA rollo, p. 124.
Penned by Justice Amelita G. Tolentino with the concurrence of Justices Portia Alio Hormachuelos
and Vicente S.E. Veloso, CA rollo, pp. 232-254.
[13]
Rollo, p. 68.
[14]
Id. at p. 66 (citations omitted)..

335
As the resolution of the second assignment of error is
determinative of whether there is still necessity of segueing to the first and
third assignments of error, it shall early on be passed upon.
Appellant claims that there was failure to follow the requirements
of Sec. 21 of R.A. No. 9165, hence, it compromised the integrity and
evidentiary value of the allegedly seized items.
Sec. 21 of R.A. No 9165 provides:
Section 21. Custody and Disposition of Confiscated, Seized, and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled
Precursors
and
Essential
Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA
shall take charge and have custody of all dangerous drugs, plant sources or
dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated,
seized and or surrendered, for proper disposition in the following manner:
(1)

The apprehending team having initial custody and control of the drugs
shall, immediately after seizure and confiscation , physically inventory
and photograph the same in the presence of the accused or the persons/s
from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy
thereof; x x x (Emphasis and underscoring supplied)
Appellant claims that no physical inventory and photographing of
the drugs took place. A reading of the testimony of the poseur-buyer, PO2
Dano indeed confirms appellants claim, viz:
Atty. Puentebella:
When you brought him to the police, it was there that the items taken from
him were inventoried, is it not?
Witness:
We did not make inventory because we simply brought the evidence
confiscated.
xxx
Atty. Puentebella:
You also did not take photographs of the items taken from the accused?
Witness:
Yes, sir.
Atty. Puentebella:

336
And you know for a fact that under the new drugs law, this is a
requirement for the apprehending team to do, is it not?
Pros. Gapuzan:
Counsel is asking for a conclusion of law. I will object.
Court:
Witness may answer the question.
Witness:
Yes, sir.
xxxx
Atty. Puentebella:
So it is very clear now Mr. Witness that at the time you apprehended the
accused, you did not make an inventory in the presence of the accused
nor you did not [sic] make a photograph of the items seized in the
presence of the accused, an elective official, a representative from the
Department of Justice, or the media, thats very clear?
Witness:
Yes, sir.
Atty. Puentebella:
Since you did not make any inventory, it follows that you did not require
them to sign your inventory as required by law?
Witness:
Yes, sir.266[16] (Emphasis and underscoring supplied)
Clearly then, the apprehending police officers failed to comply
with the above-quoted provision of Section 21 of R.A. No. 9165.
People v. Pringas holds, however:
Non-compliance by the apprehending/buy-bust team with Section
21 is not fatal as long as there is justifiable ground therefor, and as long
as the integrity and the evidentiary value of the confiscated/seized
items, are properly preserved by the apprehending officer/team. Its
non-compliance will not render an accused's arrest illegal or the items
seized/confiscated from him inadmissible. What is of utmost importance is
the preservation of the integrity and the evidentiary value of the seized
items, as the same would be utilized in the determination of the guilt or
innocence of the accused.267[17] (Citation omitted, emphasis, italics and
underscoring supplied)
266

[16]

267

[17]

TSN, June 15, 2004, pp. 80-87.

G.R. No. 175928. August 31, 2007, 531 SCRA 828, 842-843

337

The Courts pronouncement in Pringas is based on the provision of

Section 21(a) of the Implementing Rules and Regulations 268[18] of R.A. No.
9165, viz:
x x x Provided, further, that non-compliance with these requirements
under justifiable grounds, as long as the integrity and evidentiary value
of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and
custody over said items; (Emphasis and underscoring supplied)
In the present case, by PO2 Danos claim, he immediately marked
the seized items which were brought to the Crime Laboratory for
examination. By his admission, however, he did not conduct an
inventory of the items seized. Worse, no photograph of the items was
taken. There was thus failure to faithfully follow the requirements of
the law.
Parenthetically, unlike in Pringas, the defense in the present case
questioned early on, during the cross examination of PO2 Dano, the
failure of the apprehending officers to comply with the inventory and
photographing requirements of Section 21 of R.A. No. 9165269[19], despite
PO2 Danos awareness of such requirements. And the defense raised it
again during the offer of evidence by the prosecution, thus:
Atty. Puentebella:
xxxx
Exhibits B which is the brown envelope, B-1, B-2 and B-3 are
objected to for being product of irregular functions of police and therefore
fruit of poisonous thinking [sic] and they are not admissible and they were
not photographed in the presence of the accused as provided for by
Sec. 21, par.1, R.A. 9165;270[20] (emphasis supplied)
IN FINE, as the failure to comply with the aforesaid requirements
of the law compromised the identity of the items seized, which is the
corpus delicti of each of the crimes charged against appellant,271[21] his
acquittal is in order.
This leaves it unnecessary to still dwell on the first and third
assignments of error.

268[18]
269
270
271

Took effect on November 27, 2002.

Vide TSN, June 15, 2004, pp. 81-85.
[20]
TSN, August 10, 2004, pp. 6-7.
[21]
People v. Laxa, 414 Phil. 156, 170 (2001) citing People v. Rigodon, 238 SCRA 27 (1994).
[19]

338
WHEREFORE, the Petition is GRANTED. The assailed
decision is REVERSED and SET ASIDE and appellant, Elpidio Bondad
Jr., y Burac, is ACQUITED of the crimes charged.
PEOPLE VS. SAMUEL OBMIRANIS, G.R. No. 181492, December 16,
2008
TINGA, J.:
This is an appeal filed by Samuel Obmiranis y Oreta (appellant)
who was charged with violation of Section 5 in relation to Section 26 of
Republic Act (R.A.) No. 9165.272[1] He was allegedly caught in a buy-bust
operation by elements of the Manila Western Police District (MWPD)
while offering to sell methyl amphetamine hydrochloride, a dangerous
drug locally known as shabu. The criminal information filed with the
Regional Trial Court (RTC) of Manila, Branch 2 273[2] accused him as
follows:
That on or about May 18, 2004, in the City of Manila, Philippines,
the said accused, not having been authorized by law to sell, trade, deliver
or give away to another any dangerous drug, did then and there willfully,
unlawfully and knowingly attempt to sell or offer for sale one (1)
transparent plastic sachet containing TWO POINT EIGHT ZERO ZERO
(2.800) grams of white crystalline substance known as SHABU
containing methylamphetamine hydrochloride, a dangerous drug.
Contrary to law.274[3]
At the pre-trial, both the prosecution and the defense stipulated on
the qualification of Forensic Chemist Elisa Reyes and, thus, both parties
dispensed with her testimony. The prosecution further admitted that the
forensic chemist who analyzed the seized the confiscated substance
which yielded positive for methylamphetamine hydrochloride content
did not have personal knowledge of the ultimate source of the drug.275[4]
Appellant was brought to trial after having entered a negative
plea.276[5] The prosecution then proceeded to prove the charge against him
through the lone testimony of police officer Jerry Velasco (Velasco).
Velasco was the alleged leader of the raiding team that apprehended
appellant on 18 May 2004 at the corner of G.Tuazon and Jhocson Streets
in Sampaloc, Manila.277[6]

272
273
274
275
276
277

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The narrative woven by Velasco established the following facts:
On 17 May 2004, Police Superintendent Marcelino Pedrozo (Pedrozo) of
the MWPD organized a buy-bust team on the information of a confidential
informant that the latter was able to place an order for half a bulto of
shabu with appellant. Velasco was designated as the team leader and the
poseur-buyer, with Police Officers Wilfredo Cinco, Edgardo Palabay,
Roberto Benitez and one278[7]confidential informant as members.279[8]
Pedrozo gave the team a marked 500-peso bill to be used as buy-bust
money which was placed on top of a deck of boodle money. The team
informed the Philippine Drug Enforcement Agency (PDEA) of the
impending operation,280[9] entered the same in the blotter281[10] and
proceeded to Bambang in G.Tuazon Street just before 12 a.m. of 18 May
2004the appointed time and date that the confidential informant and
appellant had agreed to meet. The informant joined Velasco in his car, and
they awaited the arrival of appellant at the corner of G.Tuazon and
Jhocson Streets.282[11] At around 12:30 a.m., appellant on board a car
arrived at the scene and seeing the informant he approached the latter. The
informant introduced Velasco to appellant and said that Velasco would like
to buy one-half bulto of shabu. Velasco negotiated with appellant to
lower the price but the latter refused. Velasco then insisted that he must
first see the merchandise. Appellant went back to his car, took the item
and brought it to Velasco. Velasco readily recognized the item as a plastic
sachet containing a white crystalline substance. When appellant asked for
payment, he seemed to have recognized Velascos co-officer because he
uttered the words, May pulis yata. At that point, he was arrested just as
he was trying to get back to his car.283[12]
According to Velasco, he was the one who effected the arrest but it
was Cinco who seized the plastic sachet from appellant. He further stated
that immediately after the arrest, he and his team brought the seized item
to the police headquarters and there, in his presence, Cinco marked the
same with the initials SOO. At the trial, he identified the plastic sachet
as that seized from appellant as well as the marking made by Cinco on it.
Furthermore, he admitted on cross-examination that there was no evidence
custodian designated and that he could not remember if the seized item
had been inventoried and photographed in the presence of the accused;
that Cinco put the item in his pocket after the same was recovered and did
not mark it on the spot and that the markings made on the buy-bust money
had not been entered in the blotter.284[13]
The chemistry report issued at the instance of Pedrozo and signed
by Forensic Chemical Officer Maritess Mariano of the PNP Crime
278
279
280
281
282
283
284

340
Laboratory revealed that the specimen supposedly seized from appellant
yielded positive of methylamphetamine hydrochloride content.285[14]
Taking the stand, appellant boldly asserted that he was merely
framed up by the buy-bust team, and strongly denied having transacted the
alleged sale of shabu with Velasco and the confidential informant. He
claimed that he was taken by Velasco and his team not on 18 May 2004
but rather on 17 May 2004 at 7:00 p.m. along Santa Teresita Street,
Sampaloc, Manila;286[15] that he was there to see his girlfriend who was
residing in that area; that when he was arrested by two men in civilian
clothes, he was not committing any crime; that he asked them why they
were arresting him but neither of them gave an answer and instead one of
them grabbed him by his shoulder and ushered him inside a police car;
that once inside the car, one of the men pulled out a gun with which he hit
his neck, kicked him and uttered, Makulit ka ha, yuko!; that he asked
them why they were doing that to him when in fact he merely told them to
park their car properly on the street; that they cuffed his hands at the back
and the driver, Velasco, asked if he could give them P200,000.00; that he
answered he did not have that much money; that they drove the car around
and told him that if he could not give them the money then he must just
find for them someone who sells drugs in large-scale (Magturo ka ng
nagbebenta ng droga, iyong malakihan ha!); that because he said he did
not know anyone who was into selling drugs, he was taken to the U.N.
Avenue police headquarters; that he was not detained at the headquarters
but rather, he was brought to the second floor where the two arresting
officers demanded P50,000.00 from him; that the demand was then
reduced to P30,000.00 in exchange for the mitigation of his case. 287[16]
Olivia Ismael, another defense witness who introduced herself as a friend
of appellants girlfriend and who admitted having witnessed appellants
arrest, corroborated the material points of appellants testimony.288[17]
In its 23 February 2006 Decision, the RTC found appellant guilty
beyond reasonable doubt of the offense charged. He was sentenced to
suffer the penalty of life imprisonment, and to pay a P500,000.00 fine
without subsidiary imprisonment as well as the costs.289[18]
Appellant interposed an appeal with the Court of Appeals in
which he reiterated that the prosecution was unable to establish his
guilt beyond reasonable doubt in view of the failure to establish the
chain of custody of the illegal drugs and that it was likewise unable to
establish the consummation of the alleged sale of drugs. 290[19] For its
part, the People, through the Office of the Solicitor General (OSG),
posited that the fact that all the essential elements of a consummated sale
285
286
287
288
289
290

341
of dangerous drug had not been completely shown was immaterial because
the charge involved a mere attempt or offer to sell which had been duly
established by the prosecution.291[20] It also maintained that the chain of
custody of the seized shabu had been duly established because the
requirements in taking custody of seized narcotics provided for in
Dangerous Drugs Board Regulation No. 1, series of 2002 292[21] admit of
liberal interpretation.293[22]
In its 4 September 2007 Decision,294[23] the Court of Appeals
affirmed in toto the trial courts decision.
The appeal has to be granted.
In criminal prosecutions, fundamental is the requirement that the
elemental acts constituting the offense be established with moral certainty
as this is the critical and only requisite to a finding of guilt. In
prosecutions involving narcotics, the narcotic substance itself constitutes
the corpus delicti of the offense and the fact of its existence is vital to
sustain a judgment of conviction beyond reasonable doubt.295[27] It is
therefore of prime importance that in these cases, the identity of the
dangerous drug be likewise established beyond reasonable doubt.296[28] In
other words, it must be established with unwavering exactitude that the
dangerous drug presented in court as evidence against the accused is the
same as that seized from him in the first place. The chain of custody
requirement performs this function in that it ensures that unnecessary
doubts concerning the identity of the evidence are removed.297[29]
Board Regulation No. 1, series of 2002 defines chain of custody as
the duly recorded authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous drugs or laboratory
equipment of each stage, from the time of seizure/confiscation to receipt in
the forensic laboratory to safekeeping to presentation in court for
destruction. As a method of authenticating evidence, the chain of custody
rule requires that the admission of the exhibit be preceded by
evidence sufficient to support a finding that the matter in question is what
the proponent claims it to be.298[30] It would thus include testimony about
every link in the chain, from the moment the item was seized to the time it
is offered in court as evidence, such that every person who handled the
same would admit how and from whom it was received, where it was and
what happened to it while in the witness possession, the condition in
which it was received and the condition in which it was delivered to the
291
292
293
294
295
296
297
298

342
next link in the chain. The same witnesses would then describe the
precautions taken to ensure that there had been no change in the condition
of the item and no opportunity for someone not in the chain to have
possession of the same.299[31] It is from the testimony of every witness who
handled the evidence from which a reliable assurance can be derived that
the evidence presented in court is one and the same as that seized from the
accused.
The prosecution evidence in the case at bar, however, does not
suffice to afford such assurance. Of all the people who came into direct
contact with the sachet of shabu purportedly seized from appellant, only
Velasco was able to observe the uniqueness thereof in court. Cinco, who,
according to Velasco, took initial custody of the plastic sachet at the time
of arrest and who allegedly marked the same with the initials SOO at the
police station, was not even presented in court to directly observe the
uniqueness of the specimen and, more importantly, to acknowledge the
marking as his own. The same is true with respect to the laboratory
personnel who could have but nevertheless failed to testify on the
circumstances under which he received the specimen at the laboratory for
analysis and testing, as well as on the conduct of the examination which
was administered on the specimen and what he did with it at the time it
was in his possession and custody. Aside from that, it was not reasonably
explained why these same witnesses were not able to testify in court.
While indeed the prosecution and the defense had stipulated on the
qualification of the forensic chemist, dispensed with his testimony and
admitted that said forensic chemist had no personal knowledge of the
ultimate source of the drug submitted for examination, nevertheless, these
stipulations and admission pertain only to a certain Elisa G. Reyes and not
to Forensic Chemical Officer Maritess Mariano who, based on the
chemistry report, was the one who examined the contents of the plastic
sachet at the crime laboratory.
In view of these loopholes in the evidence adduced against
appellant, it can be reasonably concluded that the prosecution was unable
to establish the identity of the dangerous drug and in effect failed to
obliterate the hypothesis of appellants guiltlessness.
Be that as it may, although testimony about a perfect chain does
not always have to be the standard because it is almost always impossible
to obtain, an unbroken chain of custody indeed becomes indispensable
and essential when the item of real evidence is a narcotic substance. A
unique characteristic of narcotic substances such as shabu is that they are
not distinctive and are not readily identifiable as in fact they are subject to
scientific analysis to determine their composition and nature.300[32] And
because they cannot be readily and properly distinguished visually from
other substances of the same physical and/or chemical nature, they are
299
300

343
susceptible to alteration, tampering, contamination,301[33] substitution and
exchange302[34] whether the alteration, tampering, contamination,
substitution and exchange be inadvertent or otherwise not.303[35] It is by
reason of this distinctive quality that the condition of the exhibit at the
time of testing and trial is critical.304[36] Hence, in authenticating narcotic
specimens, a standard more stringent than that applied to objects which are
readily identifiable must be applieda more exacting standard that entails
a chain of custody of the item with sufficient completeness if only to
render it improbable that the original item has either been exchanged with
another or contaminated or tampered with.305[37]
The Court certainly cannot reluctantly close its eyes to the
possibility of substitution, alteration or contaminationwhether
intentional or unintentionalof narcotic substances at any of the links in
the chain of custody thereof especially because practically such possibility
is great where the item of real evidence is small and is similar in form to
other substances to which people are familiar in their daily lives. 306[38]
Graham v. State307[39] in fact acknowledged this danger. In that case, a
substance later shown to be heroin was excluded from the prosecution
evidence because prior to examination, it was handled by two police
officers who, however, did not testify in court on the condition and
whereabouts of the exhibit at the time it was in their possession. The court
in that case pointed out that the white powder seized could have been
indeed heroin or it could have been sugar or baking powder. It thus
declared that the state must be able to show by records or testimony the
continuous whereabouts of the exhibit at least between the time it came
into the possession of police officers until it was tested in the laboratory to
determine its composition.308[40]
Reasonable safeguards are provided for in our drugs laws to
protect the identity and integrity of narcotic substances and
dangerous drugs seized and/or recovered from drug offenders. Section
21309[41] of R.A. No. 9165 materially requires the apprehending team
having initial custody and control of the drugs to, [1] immediately
after seizure and confiscation, [2] physically inventory and [3]
photograph the same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the
Department of Justice, and any elected public official who [4] shall be
required to sign the copies of the inventory and be given a copy
301
302
303
304
305
306
307
308
309

344
thereof. The same requirements are also found in Section 2 310[42] of its
implementing rules311[43] as well as in Section 2312[44] of the Dangerous
Drugs Board Regulation No. 1, series of 2002.313[45]
These guidelines, however, were not shown to have been complied
with by the members of the buy-bust team, and nothing on record suggests
that they had extended reasonable efforts to comply with the statutory
requirements in handling the evidence. Velasco, the leader of the raiding
team, himself admitted that as soon as appellant was arrested, Cinco had
taken custody of the plastic sachet of shabu, placed it in his pocket and
brought the same together with appellant to the police station. It was at
the police stationand not at the place where the item was seized from
appellantwhere according to him (Velasco), Cinco had placed the
initials SOO on the specimen. Velasco never even mentioned that the
identifying mark on the specimen was placed in appellants presence; he
could not even remember whether or not the specimen had been properly
inventoried and photographed at least in appellants presence. Even more
telling is the fact that, as elicited from Velasco himself during his crossexamination, no evidence custodian had been designated by the raiding
team to safeguard the identity and integrity of the evidence supposedly
seized from appellant.314[46]
All these aforementioned flaws in the conduct of the post-seizure
custody of the dangerous drug allegedly recovered from appellant, taken
together with the failure of the key persons who handled the same to
testify on the whereabouts of the exhibit before it was offered in evidence
in court, militates against the prosecutions cause because it not only casts
doubt on the identity of the corpus delicti but also tends to discredit, if not
totally negate, the claim of regularity in the conduct of official police
operation.
What we can fairly assume is that the Court of Appeals had
overlooked the significance of these glaring details in the records of the
case as it placed blind reliance right away on the credibility of Velascos
testimony and on the presumption of regularity and thereby it failed to
properly account for the missing substantial links in the chain of custody
of the evidence.
It needs no elucidation that the presumption of regularity in the
performance of official duty must be seen in the context of an existing rule
of law or statute authorizing the performance of an act or duty or
prescribing a procedure in the performance thereof. The presumption, in
other words, obtains only where nothing in the records is suggestive of the
fact that the law enforcers involved deviated from the standard conduct of
310
311
312
313
314

345
official duty as provided for in the law. Otherwise, where the official act
in question is irregular on its face, an adverse presumption arises as a
matter of course.315[48] There is indeed merit in the contention that where
no ill motives to make false charges was successfully attributed to the
members of the buy-bust team, the presumption prevails that said police
operatives had regularly performed their duty, but the theory is correct
only where there is no showing that the conduct of police duty was
irregular. People v. Dulay316[49] and People v. Ganenas317[50] in fact both
suggest that the presumption of regularity is disputed where there is
deviation from the regular performance of duty. Suffice it to say at this
point that the presumption of regularity in the conduct of police duty is
merely just thata mere presumption disputable by contrary proof and
which when challenged by the evidence cannot be regarded as binding
truth.318[51]
It must be emphasized at this juncture that what can reasonably be
presumed based on the records of this case is that Velasco is aware of his
duties and responsibilities as an agent of the government in its antinarcotics campaign. A member of the anti-narcotics division of the police
since 1997,319[52] Velasco can be reasonably presumed to be adept in and
mindful of the proper procedure in apprehending drug offenders, securing
and taking custody of the evidence obtained in police operations such as
this one and preserving the integrity of the evidence by protecting the
chain of custody thereof.320[53] However, for reasons as obvious as
intimated above, even this presumption is unworthy of credit.
All told, in view of the deviation by the buy-bust team from the
mandated conduct of taking post-seizure custody of the dangerous drug in
this case, there is no way to presume that the members thereof had
performed their duties regularly. Even granting that we must blindly rely
on the credibility of Velascos testimony, still, the prosecution evidence
would fall short of satisfying the quantum of evidence required to arrive at
a finding of guilt beyond reasonable doubt inasmuch as the evidence chain
failed to solidly connect appellant with the seized drug in a way that
would establish that the specimen is one and the same as that seized in the
first place and offered in court as evidence. The Court cannot indulge in
the presumption of regularity of official duty if only to obliterate the
obvious infirmity of the evidence advanced to support appellants
conviction. In Mallillin v. People,321[54] we categorically declared that the
failure of the prosecution to offer in court the testimony of key witnesses
for the basic purpose of establishing a sufficiently complete chain of
custody of a specimen of shabu and the irregularity which characterized
315
316
317
318
319
320
321

346
the handling of the evidence before the same was finally offered in court,
materially conflict with every proposition as to the culpability of the
accused. For the same plain but consequential reason, we will not hesitate
to reverse the judgment of conviction in the present appeal.
One final word. In no uncertain terms must it be stressed that basic
and elementary is the presupposition that the burden of proving the guilt of
an accused rests on the prosecution which must draw strength from its
own evidence and not from the weakness of the defense. The rule, in a
constitutional system like ours, is invariable regardless of the reputation of
the accused because the law presumes his innocence until the contrary is
shown. In dubio pro reo. When moral certainty as to culpability hangs in
the balance, acquittal on reasonable doubt inevitably becomes a matter of
right.322[55]
WHEREFORE, the assailed Decision of the Court of Appeals in
CA-G.R. CR.-H.C. No. 02158 affirming the judgment of conviction
rendered by the Regional Trial Court of Manila, Branch 2, is REVERSED
and SET ASIDE. Appellant Samuel Obmiranis y Oreta is ACQUITTED
on reasonable doubt and is thus accordingly ordered released immediately
from confinement, unless he is lawfully confined for another offense.
JUNIE MALLILLIN Y. LOPEZ VS. PEOPLE, G.R. No. 172953 ,
April 30, 2008
THE FACTS:
On the strength of a warrant of search and seizure issued by the
RTC of Sorsogon City, Branch 52, a team of five police officers raided the
residence of petitioner in Barangay Tugos, Sorsogon City on 4 February
2003. The team was headed by P/Insp. Catalino Bolanos (Bolanos), with
PO3 Roberto Esternon (Esternon), SPO1 Pedro Docot, SPO1 Danilo
Lasala and SPO2 Romeo Gallinera (Gallinera) as members. The search
conducted in the presence of barangay kagawad Delfin Licup as well as
petitioner himself, his wife Sheila and his mother, Normaallegedly
yielded two (2) plastic sachets of shabu and five (5) empty plastic sachets
containing residual morsels of the said substance.
Accordingly, petitioner was charged with violation of Section 11,
Article II of Republic Act No. 9165, otherwise known as The
Comprehensive Dangerous Drugs Act of 2002.
That on or about the 4th day of February 2003, at about 8:45 in the
morning in Barangay Tugos, Sorsogon City, Philippines, the said accused
did then and there willfully, unlawfully and feloniously have in his
possession, custody and control two (2) plastic sachets of
methamphetamine hydrochloride [or] shabu with an aggregate weight of
322

347
0.0743 gram, and four empty sachets containing shabu residue, without
having been previously authorized by law to possess the same.
CONTRARY TO LAW.
Petitioner entered a negative plea. At the ensuing trial, the
prosecution presented Bolanos, Arroyo and Esternon as witnesses.
Taking the witness stand, Bolanos, the leader of the raiding team,
testified on the circumstances surrounding the search as follows: that he
and his men were allowed entry into the house by petitioner after the latter
was shown the search warrant; that upon entering the premises, he ordered
Esternon and barangay kagawad Licup, whose assistance had previously
been requested in executing the warrant, to conduct the search; that the
rest of the police team positioned themselves outside the house to make
sure that nobody flees; that he was observing the conduct of the search
from about a meter away; that the search conducted inside the bedroom of
petitioner yielded five empty plastic sachets with suspected shabu residue
contained in a denim bag and kept in one of the cabinets, and two plastic
sachets containing shabu which fell off from one of the pillows searched
by Esternona discovery that was made in the presence of petitioner. 323[10]
On cross examination, Bolanos admitted that during the search, he was
explaining its progress to petitioners mother, Norma, but that at the same
time his eyes were fixed on the search being conducted by Esternon.
Esternon testified that the denim bag containing the empty plastic
sachets was found behind the door of the bedroom and not inside the
cabinet; that he then found the two filled sachets under a pillow on the bed
and forthwith called on Gallinera to have the items recorded and
marked.324[12] On cross, he admitted that it was he alone who conducted
the search because Bolanos was standing behind him in the living room
portion of the house and that petitioner handed to him the things to be
searched, which included the pillow in which the two sachets of shabu
were kept;325[13] that he brought the seized items to the Balogo Police
Station for a true inventory, then to the trial court 326[14] and thereafter to
the laboratory.327[15]
Supt. Lorlie Arroyo (Arroyo), the forensic chemist who
administered the examination on the seized items, was presented as an
expert witness to identify the items submitted to the laboratory. She
323
[10]

TSN, 22 April 2003, pp. 6-9.

324
[12]

TSN, 23 July 2003, pp. 6-7, 10.

325[13]

Id. at 16-17.

326[14]

TSN, 23 July 2003, pp. 13-15.

327[15]

Id. at 9.

348
revealed that the two filled sachets were positive of shabu and that of the
five empty sachets, four were positive of containing residue of the same
substance.328[16] She further admitted that all seven sachets were delivered
to the laboratory by Esternon in the afternoon of the same day that the
warrant was executed except that it was not she but rather a certain Mrs.
Ofelia Garcia who received the items from Esternon at the laboratory .]
The evidence for the defense focused on the irregularity of the
search and seizure conducted by the police operatives. Petitioner testified
that Esternon began the search of the bedroom with Licup and petitioner
himself inside. However, it was momentarily interrupted when one of the
police officers declared to Bolanos that petitioners wife, Sheila, was
tucking something inside her underwear. Forthwith, a lady officer arrived
to conduct the search of Sheilas body inside the same bedroom. At that
point, everyone except Esternon was asked to step out of the room. So, it
was in his presence that Sheila was searched by the lady officer.
Petitioner was then asked by a police officer to buy cigarettes at a
nearby store and when he returned from the errand, he was told that
nothing was found on Sheilas body.329[18] Sheila was ordered to transfer to
the other bedroom together with her children.
Petitioner asserted that on his return from the errand, he was
summoned by Esternon to the bedroom and once inside, the officer closed
the door and asked him to lift the mattress on the bed. And as he was
doing as told, Esternon stopped him and ordered him to lift the portion of
the headboard. In that instant, Esternon showed him sachet of shabu
which according to him came from a pillow on the bed. 330[20] Petitioners
account in its entirety was corroborated in its material respects by Norma,
barangay kagawad Licup and Sheila in their testimonies. Norma and
Sheila positively declared that petitioner was not in the house for the entire
duration of the search because at one point he was sent by Esternon to the
store to buy cigarettes while Sheila was being searched by the lady officer.
Licup for his part testified on the circumstances surrounding the discovery
of the plastic sachets. He recounted that after the five empty sachets were
found, he went out of the bedroom and into the living room and after
about three minutes, Esternon, who was left inside the bedroom,
exclaimed that he had just found two filled sachets.]
On 20 June 2004 the trial court rendered its Decision declaring
petitioner guilty beyond reasonable doubt of the offense charged.
Petitioner was condemned to prison for twelve years (12) and one (1) day
to twenty (20) years and to pay a fine of P300,000.00. The trial court
reasoned that the fact that shabu was found in the house of petitioner was
328
[16]
TSN, 28 May 2003, p. 14. The results of the chemical analysis are embodied in Chemistry Report No. D-037-03.
See records, p. 18.
329
[18]

TSN, 2 December 2003, pp. 6-10.

330[20]

Id. at 11-12.

349
prima facie evidence of petitioners animus possidendi sufficient to
convict him of the charge inasmuch as things which a person possesses or
over which he exercises acts of ownership are presumptively owned by
him. It also noted petitioners failure to ascribe ill motives to the police
officers to fabricate charges against him.
Hence, this Appeal.
HELD:
Prosecutions for illegal possession of prohibited drugs necessitates
that the elemental act of possession of a prohibited substance be
established with moral certainty, together with the fact that the same is not
authorized by law. The dangerous drug itself constitutes the very corpus
delicti of the offense and the fact of its existence is vital to a judgment of
conviction. Essential therefore in these cases is that the identity of the
prohibited drug be established beyond doubt . Be that as it may, the
mere fact of unauthorized possession will not suffice to create in a
reasonable mind the moral certainty required to sustain a finding of guilt.
More than just the fact of possession, the fact that the substance illegally
possessed in the first place is the same substance offered in court as
exhibit must also be established with the same unwavering exactitude as
that requisite to make a finding of guilt. The chain of custody requirement
performs this function in that it ensures that unnecessary doubts
concerning the identity of the evidence are removed.
As a method of authenticating evidence, the chain of custody rule
requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link in
the chain, from the moment the item was picked up to the time it is offered
into evidence, in such a way that every person who touched the exhibit
would describe how and from whom it was received, where it was and
what happened to it while in the witness possession, the condition in
which it was received and the condition in which it was delivered to the
next link in the chain. These witnesses would then describe the
precautions taken to ensure that there had been no change in the condition
of the item and no opportunity for someone not in the chain to have
possession of the same.
Indeed, the likelihood of tampering, loss or mistake with respect to
an exhibit is greatest when the exhibit is small and is one that has physical
characteristics fungible in nature and similar in form to substances familiar
to people in their daily lives.331[41] Graham vs. State332[42] positively
acknowledged this danger. In that case where a substance later analyzed
as heroinwas handled by two police officers prior to examination who
331[41]

Graham v. State, 255 N.E2d 652, 655.

332[42]

Graham v. State, 255 N.E2d 652.

350
however did not testify in court on the condition and whereabouts of the
exhibit at the time it was in their possessionwas excluded from the
prosecution evidence, the court pointing out that the white powder seized
could have been indeed heroin or it could have been sugar or baking
powder. It ruled that unless the state can show by records or testimony,
the continuous whereabouts of the exhibit at least between the time it
came into the possession of police officers until it was tested in the
laboratory to determine its composition, testimony of the state as to the
laboratorys findings is inadmissible.333[43]
A unique characteristic of narcotic substances is that they are not
readily identifiable as in fact they are subject to scientific analysis to
determine their composition and nature. The Court cannot reluctantly
close its eyes to the likelihood, or at least the possibility, that at any of the
links in the chain of custody over the same there could have been
tampering, alteration or substitution of substances from other casesby
accident or otherwisein which similar evidence was seized or in which
similar evidence was submitted for laboratory testing. Hence, in
authenticating the same, a standard more stringent than that applied to
cases involving objects which are readily identifiable must be applied, a
more exacting standard that entails a chain of custody of the item with
sufficient completeness if only to render it improbable that the original
item has either been exchanged with another or been contaminated or
tampered with.
A mere fleeting glance at the records readily raises significant
doubts as to the identity of the sachets of shabu allegedly seized from
petitioner. Of the people who came into direct contact with the seized
objects, only Esternon and Arroyo testified for the specific purpose of
establishing the identity of the evidence. Gallinera, to whom Esternon
supposedly handed over the confiscated sachets for recording and
marking, as well as Garcia, the person to whom Esternon directly handed
over the seized items for chemical analysis at the crime laboratory, were
not presented in court to establish the circumstances under which they
handled the subject items. Any reasonable mind might then ask the
question: Are the sachets of shabu allegedly seized from petitioner the
very same objects laboratory tested and offered in court as evidence?
The prosecutions evidence is incomplete to provide an affirmative
answer. Considering that it was Gallinera who recorded and marked the
seized items, his testimony in court is crucial to affirm whether the
exhibits were the same items handed over to him by Esternon at the place
of seizure and acknowledge the initials marked thereon as his own. The
same is true of Garcia who could have, but nevertheless failed, to testify
on the circumstances under which she received the items from Esternon,
what she did with them during the time they were in her possession until
before she delivered the same to Arroyo for analysis.
333
[43]

Graham v. State, 255 N.E2d 652, 655.

351

Given the foregoing deviations of police officer Esternon from the

standard and normal procedure in the implementation of the warrant and
in taking post-seizure custody of the evidence, the blind reliance by the
trial court and the Court of Appeals on the presumption of regularity in the
conduct of police duty is manifestly misplaced. The presumption of
regularity is merely just thata mere presumption disputable by contrary
proof and which when challenged by the evidence cannot be regarded as
binding truth.334[52] Suffice it to say that this presumption cannot
preponderate over the presumption of innocence that prevails if not
overthrown by proof beyond reasonable doubt.335[53] In the present case the
lack of conclusive identification of the illegal drugs allegedly seized from
petitioner, coupled with the irregularity in the manner by which the same
were placed under police custody before offered in court, strongly
militates a finding of guilt.
In our constitutional system, basic and elementary is the
presupposition that the burden of proving the guilt of an accused lies on
the prosecution which must rely on the strength of its own evidence and
not on the weakness of the defense. The rule is invariable whatever may
be the reputation of the accused, for the law presumes his innocence
unless and until the contrary is shown.336[54] In dubio pro reo. When moral
certainty as to culpability hangs in the balance, acquittal on reasonable
doubt inevitably becomes a matter of right.
The Equipoise Rule; Evidence of guilt and evidence of innocence are
about even; effect of non-presentation of forensic chemist who
examined the shabu or marijuanaground for acquittal.
PEOPLE OF THE PHILIPPINES vs. MONALYN CERVANTES,
G.R. No. 181494, March 17, 2009
VELASCO, JR., J.:
This is an appeal from the Decision dated July 19, 2007 of the
Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00476 which affirmed
the April 23, 2004 Decision in Criminal Case No. 00-181929 of the
Regional Trial Court (RTC), Branch 53 in Manila. The RTC found
accused-appellant Monalyn Cervantes guilty beyond reasonable doubt of
violation of Section 15, Article III of Republic Act No. (RA) 6425 or the
Dangerous Drugs Act of 1972, as amended.
The records show the following facts:
334[52]

People v. Ambrosio, G.R. No. 135378, 14 April 2004, 427 SCRA 312, 318 citing People v. Tan, 382 SCRA 419

(2002).
335[53]

People v. Ambrosio, G.R. No. 135378, 14 April 2004, 427 SCRA 312, 318 citing People v. Tan, 382 SCRA 419

(2002).
336
[54]

People v. Laxa, id.

352

In an Information dated April 7, 2000, accused-appellant and three

others were charged with violation of Sec. 15, Art. III of RA 6425 (selling
or distributing a regulated drug), allegedly committed as follows:
That, on or about April 5, 2000, in the City of Manila, Philippines,
and within the jurisdiction of this Honorable Court, accused ISIDRO
ARGUSON y ARENDELA, @ Tisoy, MONALYN [CERVANTES] y
SOLAR @ Mona, WILSON DEL MONTE @ Wilson and RICHARD
REQUIZ @ Richard, conspiring, confederating and mutually helping one
another, acting in common accord, did then and there, willfully, unlawfully
and feloniously, for the amount of FIVE HUNDRED THOUSAND
(P500,000.00) PESOS, Philippine Currency, sell, deliver and give away to
a poseur-buyer, FOUR HUNDRED SEVENTY THREE POINT
SEVENTY SIX (473.76) GRAMS OF METHAMPHETAMINE
[HYDROCHLORIDE], commonly known as shabu, a regulated drug,
without authority of law or the corresponding license therefor.
CONTRARY TO LAW.337[1]
Accused-appellant and her co-accused pleaded not guilty to the
charge. In the ensuing trial, the prosecution presented in evidence the oral
testimonies of William Todavia, PO3 Reynaldo Ramos of the Philippine
National Police Regional Office IV (PNP R-IV), and P/Sr. Inspector Lorna
Tria, a forensic chemical officer of the same regional office.
The Peoples version of the incident, as summarized by the CA in
the decision now on appeal, is as follows:
On April 5, 2000, the Regional Special Operations Group IV
(RSOG-IV), based at Camp Vicente Lim in Calamba, Laguna, received a
tip from a deep penetration agent (DPA) about a group of drug traffickers
led by Isidro Arguson operating in Cavite. Acting on this bit of
information, a team led by SPO2 Geronimo Pastrana, PO3 Ramos, and
PO2 Emerson Balosbalos arranged a buy-bust operation to be conducted at
Argusons rest house in Barangay Lambingan, Tanza, Cavite.338[2] Upon
arriving at the rest house, PO3 Ramos and PO2 Balosbalos, acting as
poseur-buyers, were introduced by the DPA to Arguson as the buyers of
PhP 500,000 worth of shabu, simultaneously showing him a bundle of
money. Since Arguson did not have enough supply of shabu in the
premises, he instructed the would-be-buyers to follow him to Pasay City.
For the purpose, he hired a vehicle owned by Todavia.
At about three oclock in the afternoon of that day, in front of the
McDonalds branch in P. Ocampo St., Pasay City,339[3] Arguson instructed
the would-be-buyers to wait for someone who will come out from the
nearby Estrella St. Very much later, accused-appellant emerged from
337[1]

Rollo, pp. 6-7.

Id. at 5.
[3]
The McDonalds branch in P. Ocampo St. was later determined to be in Manila.
338[2]

339

353
Estrella St. and approached PO3 Ramos to check if he still had the money.
After being shown the money bundle, accused-appellant left, only to
return a few minutes later this time with Arguson, Wilson Del Monte, who
was holding a black plastic bag, and Richard Requiz. Arguson then took
from Del Monte the bag, later found to contain 473.76 grams of shabu
packed in six small self-sealing transparent bags, and handed it to PO2
Balosbalos, who in turn gave him the bundle of boodle money. Finally,
PO3 Ramos gave the pre-arranged signal to indicate the consummation of
the drug deal and introduced himself as policeman. Accused-appellant and
her scampering companions were later arrested and brought to and booked
at Camp Vicente Lim.
The black plastic bag containing the six small self-sealing bags of
white crystalline substance was likewise taken to Camp Vicente Lim
where PO3 Ramos prepared the booking sheets and arrest reports and the
request for a qualitative analysis of the seized items. Regional Crime
Laboratory Office IV Chief Inspector (C/I) Mary Jean Geronimo then
conducted the standard physical and chemical examinations on the
specimen referred to her.
On April 6, 2000, C/I Geronimo prepared and completed
Chemistry Report No. D-115800 on the crystalline substance. Per her
report, the substance tested positive for methamphetamine hydrochloride
or shabu.
Apart from the witnesses affidavits and other documents, the
prosecution, in the hearing of March 4, 2002, offered in evidence the
following exhibits,340[4] inclusive of its sub markings, which, as may be
expected, were objected to by the defense: (a) Exhibit B Chemistry
Report No. D-115800 prepared by C/I Geronimo; (b) Exhibit C
Memorandum of RSOG-IV dated April 5, 2000 to the Chief, Laboratory
Service, requesting for qualitative analysis of the contents of the six
transparent plastic bags; (c) Exhibits D and D-1 to D-6 Black
plastic bag with markings; and six (6) self-sealing transparent bags
allegedly containing the confiscated shabu; and (d) Exhibit F Receipt
of property seized signed by PO2 Balosbalos and by Todavia and PO3
Ramos as witnesses.
The CA decision likewise summarized the defenses account of what
purportedly transpired, to wit:
Accused-appellant testified that after she did laundry works at her
house in Estrella Street near F.B. Harrison on April 4, 2000, her youngest
child asked her to go to [McDonalds], Vito Cruz branch, to buy ice cream.
When they arrived thereat at about 4:30 in the afternoon, there was a
commotion going on in front of the restaurant. She then saw a woman who
alighted from a nearby van and pointed her out to her companions, one of
whom [was] an old man boarded her inside the van causing her to lose
340

[4]

Records, pp. 185-187.

354
hold of her child. Thereafter, two (2) younger male persons, whom she
later came to know as DEL MONTE and REQUIZ, were also boarded into
the same van. They were taken to a cemetery where another vehicle came
and took them to Camp Vicente Lim, where she allegedly met ARGUSON
for the first time.
On the other hand, accused DEL MONTE testified that he was a
parking boy around Vito Cruz and that on the day in question, while he
was watching a vehicle near [McDonalds], Vito Cruz branch, a
commotion happened near his post. As he moved backward from where he
stood, he was suddenly approached by a policeman who arrested him and
boarded him inside a vehicle together with CERVANTES and REQUIZ,
whom he did not know prior to that incident.
For his part, accused REQUIZ testified that on the date and time in
question, he was riding a borrowed bicycle on his way to the Cultural
Center, passing by F.B. Harrison St., when he bumped a parked van,
wherefrom a man alighted and cursed him, saying pulis ako wag kang
aalis dyan[!] The man left and when he returned, accused CERVANTES
was with him. Thereafter, he was boarded into the van together with the
other accused.341[5]
While not stated in the CA decision, Del Monte testified, like
accused-appellant, that he was taken to a cemetery somewhere in Cavite
where the arresting officers lingered for an hour before bringing him to
Camp Vicente Lim.342[6] These testimonies remained uncontroverted.
Arguson died during the
course of the trial resulting in the dismissal of the case against him.343[7]
On April 23, 2004, the RTC rendered judgment acquitting Del
Monte and Requiz but finding accused-appellant guilty as charged and
meting upon her the penalty of reclusion perpetua. The fallo of the RTC
Decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby
rendered:

341

[5]

342

[6]

343

1.

Finding accused MONALYN CERVANTES Y SOLAR GUILTY

beyond reasonable doubt of violation of Sec. 15, Article III, of Republic
Act No. 6425 as amended, and is sentenced to Reclusion Perpetua and to
pay a fine in the amount of Php500,000.00; and

2.

Finding the prosecutions evidence insufficient to prove the guilt of

accused WILSON DEL MONTE and RICHARD REQUIZ beyond
reasonable doubt, and who are hereby ACQUITTED.

Rollo, pp. 7-8.

TSN, January 20, 2003, pp. 10-11.
[7]
Rollo, p. 8.

355

SO ORDERED.344[8]
On May 18, 2004, accused-appellant filed a Notice of Appeal,
pursuant to which the RTC forwarded the records of the case to this Court.
Conformably with People v. Mateo,345[9] the Court directed the
transfer of the case to the CA where it was docketed as CA-G.R. CR-H.C.
No. 00476. Before the appellate court, accused-appellant urged her
acquittal on the ground of insufficiency of evidence, particularly stating
that the forensic chemist who actually conducted the laboratory
examination on the specimens allegedly recovered from the accused was
not presented in court x x x [and] hence, there was no clear identification
of the contents of the confiscated sachets.346[10]
By its Decision347[11] dated July 19, 2007, the CA, finding the
elements necessary for the prosecution of illegal sale of drugs 348[12] to have
sufficiently been satisfied and the identification of accused-appellant
having been established, affirmed her conviction.
The CA rejected accused-appellants lament about one Inspector
Tria testifying on the chemistry report she did not prepare. As the
appellate court stressed, C/I Geronimos forensic report carries the
presumption of regularity in the performance of official functions
[and] the entries thereon x x are prima facie evidence of the facts
therein stated. The CA added the observation that absent any
evidence overturning the presumption of regularity in the
performance of official functions, the probative value and
admissibility of the forensic report prepared by C/I Geronimo, who
had resigned from the service, must be upheld even if she did not
personally testify in court.
On August 17, 2007, accused-appellant filed a Notice of Appeal of
the CA affirmatory decision.
On March 24, 2008, this Court required the parties to submit
supplemental briefs if they so desired. The parties manifested their
willingness to submit the case on the basis of the records already
submitted, thus veritably reiterating their principal arguments raised in the
CA, which on the part of accused-appellant would be:

344

[8]

345

[9]

CA rollo, p. 30. Penned by Judge Reynaldo A. Alhambra.

G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.
346
[10]
CA rollo, pp. 81-82.
347
[11]
Rollo, pp. 4-10. Penned by Associate Justice Estela M. Perlas-Bernabe and concurred in by
Associate Justices Vicente Q. Roxas and Lucas P. Bersamin.
348
[12]
(a) identity of the buyer and the seller, the object and the consideration; and (b) the delivery of the
thing sold and payment therefor.

356
THE [CA] GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY OF THE OFFENSE CHARGED DESPITE THE
INSUFFICIENCY OF EVIDENCE FOR THE PROSECUTION.
For its part, the People, thru the Office of the Solicitor General,
counters that the prosecution has established that the buy-bust transaction
took place, has identified accused-appellant and her complicity in
Argusons illegal trade, and has presented the corpus delicti, as evidence.
The Courts Ruling
After a circumspect study, the Court resolves to acquit accusedappellant, considering certain circumstances engendering reasonable doubt
as to her guilt.
We start off with the most basic, the testimony of the prosecutions
principal witness, PO3 Ramos, who identified accused-appellant and
described her role in the conspiracy to sell shabu. In the witness box, PO3
Ramos testified that, after being told by Arguson to wait for someone who
will come out from the street whence Arguson would enter, accusedappellant emerged from said street, checked on the purchase money, asked
the operatives to wait, and later re-appeared. What happened next is
captured by the following answers of PO3 Ramos to the prosecutors
questions:
Q: What did you see when Cervantes already returned? A: When Monalyn
return the one holding the plastic bag was Wilson, sir.
Q: Wilson? A: Yes, sir, together with Richard, Wilson, Arguson, they were
four (4).
Atty. Cruz: Your honor, may we move to strike that out x x x.
Fiscal Formoso: Thats part of the answer x x x now, when all these
accused here return with Monalyn Cervantes, what happen[ed]?
A: Arguson took the plastic bag from Wilson, sir and handed it to
Balosbalos, Balosbalos gave Arguson the boodle money while I flash the
signal x x x then we apprehended them.349[13]
As may be noted, PO3 Ramos categorically stated that Del Monte
was among the four who emerged with Arguson from a street. Without
hesitation, PO3 Ramos pointed to Del Monte as the one holding the plastic
bag allegedly containing the prohibited substance until Arguson took it
from him and handed it over to PO2 Balosbalos. There is no suggestion
that accused-appellant, while at the crime scene, ever handled the
merchandise or its container. Yet, the trial court acquitted Requiz and Del
Monte, but convicted accused-appellant, stating: Clearly, accused
349

[13]

TSN, October 23, 2001, pp. 12-16.

357
Monalyn Cervantes complicity with accused Isidro Arguson in the sale of
shabu has been established by the testimony of PO3 Ramos.350[14] But
two paragraphs later, the RTC went on to write:
x x x While PO3 Ramos testified that the bag was initially held by
accused Del Monte and then taken from him by accused Arguson, there is
no other evidence which can support the charge of conspiracy with
Arguson and Cervantes x x x. The court does not find the evidence
sufficient to pass the test of moral certainty to find accused Del Monte
liable as charged. Even if PO3 Ramos saw him to have held the bag for
Arguson, it could have been possible that he was merely asked by
Cervantes or Arguson to carry the bag.351[15]
Before us then is a situation where two personsaccusedappellant, a laundry woman; and Del Monte, a car park boy, in the
company of the ostensible pusher, Arguson, during the actual buy bust
are being indicted, on the basis alone of the testimony of a witness, with
confederating with each and several others to sell shabu. The overt acts
performed by accused-appellant, as indicia of conspiracy, consisted of
allegedly verifying whether the poseur-buyer still had the purchase money,
disappearing from the scene and then coming back with the principal
player. On the other hand, Del Monte came accompanying Arguson
carrying the drug-containing plastic bag no less. As between the two acts
performed, carrying the bag would relatively have the more serious
implication being in itself a punishable act of possession of regulated
drugs. Both offered the defenses of denial and instigation, each testifying
that they just happened to be near or passing by McDonalds at about 4:30
in the afternoon of April 4, 2000 when they were apprehended. But the
trial court, in its observation that it could have been possible that [Del
Monte] was merely asked by x x x Arguson to carry the bag, extended to
Del Monte the benefit of the doubt, a benevolence denied to accusedappellant without so much of an acceptable explanation. Any reasonable
mind might ask: Why the contrasting treatment? Why consider PO3
Ramos as a highly credible eyewitness as against accused-appellant, but
an unreliable one as against Del Monte, when both accused are complete
strangers to the policeman?
To paraphrase an unyielding rule, if the inculpatory testimony is
capable of two or more explanations, one consistent with the innocence of
the accused persons and the other consistent with their guilt, then the
evidence does not fulfill the test of moral certainty and is not sufficient to
support a conviction.352[16]
But even if we were to cast aside the foregoing equipoise rule, a
reversal of the appealed decision is indicated on another but more
compelling ground. We refer to the postulate that the prosecution, having
350

[14]

351

[15]

352

CA rollo, p. 28.
Id. at 28-29.
[16]
People v. Navarro, G.R. No. 173790, October 11, 2007, 535 SCRA 644, 653.

358
failed to positively and convincingly prove the identity of the seized
regulated substance, is deemed to have also failed to prove beyond
reasonable doubt accused-appellants guilt. We shall explain.
In every prosecution for illegal sale of dangerous drug, what is
crucial is the identity of the buyer and seller, the object and its
consideration, the delivery of the thing sold, and the payment for it.
Implicit in these cases is first and foremost the identity and existence,
coupled with the presentation to the court of the traded prohibited
substance, this object evidence being an integral part of the corpus353[17]
delicti354[18] of the crime of possession or selling of regulated/prohibited
drug.355[19] There can be no such crime when nagging doubts persist on
whether the specimen submitted for examination and presented in court
was what was recovered from, or sold by, the accused.356[20] Essential,
therefore, in appropriate cases is that the identity of the prohibited drug be
established with moral certainty. This means that on top of the key
elements of possession or sale, the fact that the substance illegally
possessed and sold in the first place is the same substance offered in court
as exhibit must likewise be established with the same degree of certitude
as that needed to sustain a guilty verdict. And as we stressed in Malillin v.
People, the chain of custody requirement performs this function in
that it ensures that unnecessary doubts concerning the identity of the
evidence are removed.357[21] So it is that in a slew of cases the Court has
considered the prosecutions failure to adequately prove that the specimen
submitted for laboratory examination was the same one supposedly seized
from the offending seller or possessor as ground for acquittal.358[22]
Sec. 1(b) of the Dangerous Drugs Board Regulation No. 1, Series of
2002, or the Guidelines on the Custody and Disposition of Seized
Dangerous Drugs, Controlled Precursors and Essential Chemicals,
and Laboratory Equipment, defines chain of custody, thusly:
Chain of Custody means the duly recorded authorized
movements and custody of seized drugs or controlled chemicals x x x
from the time of seizure/confiscation to receipt in the forensic laboratory
to safekeeping to presentation in court for destruction. Such record of
movements and custody of seized item shall include the identity and
signature of the person who held temporary custody of the seized item, the
353

[17]

354

[18]

A Latin word which signifies body.

Literally body of the crime; in the legal sense, corpus delicti as referring to the fact of the
commission of the crime charged or to the substance of the crime; it does not refer to the actual physical
evidence, such as ransom money in the crime of kidnapping for ransom, the cadaver of the person murdered, or
the confiscated cases of blue seal cigarettes in the crime of smuggling. See Rimorin, Sr. v. People, G.R. No.
146481, April 30, 2003, 402 SCRA 393, 400.
355
[19]
People v. Sanchez, G.R. No. 175832, October 10, 2008; citing Valdez v. People, G.R. No. 170180,
November 23, 2007, 538 SCRA 611.
356
[20]
Valdez, supra note 19, at 628-629; citing People v. Ong, G.R. No. 137348, June 21, 2004, 432 SCRA
470.
357
[21]
G.R. No. 172953, April 30, 2008, 553 SCRA 619, 632; citing American jurisprudence.
358
[22]
Valdez, supra; Ong, supra note 20.

359
date and time when such transfer of custody [was] made in the course of
safekeeping and use in court as evidence, and the final disposition.359[23]
As a mode of authenticating evidence, the chain of custody rule
requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. In context, this would ideally include testimony
about every link in the chain, from the seizure of the prohibited drug up to
the time it is offered into evidence, in such a way that everyone who
touched the exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness possession, the
condition in which it was received, and the condition in which it was
delivered to the next link in the chain.360[24] The need for the punctilious
observance of the chain-of-custody process in drug-related cases is
explained in Malillin in the following wise:
While testimony about a perfect chain is not always the standard because
it is almost always impossible to obtain, an unbroken chain of custody
becomes indispensable and essential when the item of real evidence is
not distinctive and is not really identifiable, or when its condition at the
time of testing or trial is critical, or when a witness has failed to observe
its uniqueness. The same standard likewise obtains in case the evidence is
susceptible to alteration, tampering, contamination and even substitution
and exchange. In other words, the exhibits level of susceptibility to
fungibility, alteration or tamperingwithout regard to whether the same is
advertent or otherwise notdictates the level of strictness in the
application of the chain of custody rule.
xxxx
A unique characteristic of narcotic substances is that they are not readily
identifiable as in fact they are subject to scientific analysis to determine
their composition and nature. The Court cannot reluctantly close its eyes
to the likelihood, or at least the possibility, that at any of the links in the
chain of custody over the same there could have been tampering, alteration
or substitution of substances from other casesby accident or
otherwisein which similar evidence was seized or in which similar
evidence was submitted for laboratory testing. Hence, in authenticating the
same, a standard more stringent than that applied to cases involving
objects which are readily identifiable must be applied, a more exacting
standard that entails a chain of custody of the item with sufficient
completeness if only to render it improbable that the original item has
either been exchanged with another or been contaminated or tampered
with.361[25] (Emphasis added.)

359

[23]
In accordance with Sec. 21, Art. II of the Implementing Rules and Regulations (IRR) of RA 9165 or
the Comprehensive Dangerous Drugs Act of 2002 in relation to Sec. 81(b), Art. IX of RA 9165.
360
[24]
Malillin, supra note 21.
361
[25]
Id. at 633-634.

360
As the Court distinctly notes in this case, of the individuals who
came into direct contact with or had physical custody of the seized
regulated items, only PO3 Ramos testified for the specific purpose of
identifying the evidence. In the witness box, however, he did not indicate
how he and his companions, right after the buy bust, handled the seized
plastic bag and its contents. He did not name the duty desk officer at Camp
Vicente Lim to whom he specifically turned over the confiscated bag and
sachets at least for recording. What is on record is Exhibit C, which, as
earlier described, is a memorandum362[26] PO3 Ramos prepared363[27] dated
April 5, 2000 from the RSOG-IV Director to the Chief, PNP R-IV Crime
Laboratory Service, submitting for qualitative analysis the white
crystalline substance confiscated by the buy-bust group. Needless to
stress, the unnamed person who delivered the suspected shabu and the
recipient of it at the laboratory were no-show in court to testify on the
circumstances under which they handled the specimen or whether other
persons had access to the specimen before actual testing. And C/I
Geronimo, the analyzing forensic chemist, was not also presented. Then,
too, no one testified on how the specimen was cared after following the
chemical analysis. As the Court observed aptly in People v. Ong, [T]hese
questions should be answered satisfactorily to determine whether the
integrity of the evidence was compromised in any way. Otherwise, the
prosecution cannot maintain that it was able to prove the guilt of
appellants beyond reasonable doubt.364[28]
It cannot be overemphasized that Inspector Tria was really not part of
the custodial chain. And she did not as she could not, even if she
wanted to, testify on whether or not the specimen turned over for
analysis and eventually offered in court as exhibit was the same
substance received from Arguson.
Given the foregoing perspective, it is fairly evident that the police
operatives trifled with the procedures in the custody of seized prohibited
drugs in a buy-bust operation, as embodied in Sec. 21(1), Art. II of RA
9165, i.e., the apprehending officer/team having initial custody and control
of the drug shall:
immediately after seizure and confiscation, physically inventory and
photograph the [drug] in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall
be required to sign the copies of the inventory and be given a copy
thereof.365[29]
362

[26]

363

[27]

Records, p. 33.
TSN, October 23, 2001, p. 20.
364
[28]
Supra note 20, at 490.
365[29]
The IRR of RA 9165 provides further, non-compliance with these requirements under
justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody
over said items.

361

In this case, no physical inventory was made and no photograph

taken nor markings made on the seized articles at the crime scene. PO3
Ramos admitted as much, thus:
Q. Now, you were able to arrest all the accused here, after their
arrest, what did you do? A. After informing their rights and the reason
why we arrest them we brought them immediately to our office in
Canlubang.
xxxx
Q. Now, what about this Shabu, who was in possession of this
Shabu x x x when you left the place and proceeded to Canlubang? A. PO2
Balosbalos, sir.
xxxx
Q. Now, when you reach your office, what did you do there? A. I
made the booking sheet and I requested for their medical/physical
examination x x x.366[30]
Just as clear is the fact that the exacting chain of custody rule was
not observed. Withal, there is no reasonable assurance that no
tampering or substitution occurred between the time the police seized
the black bag in P. Ocampo St. in Manila until its contents were tested
in the laboratory of the PNP R-IV headquarters in Canlubang,
Laguna. In net effect, a heavy cloud of doubt hangs over the integrity and
necessarily the evidentiary value of the seized items. The prosecution
cannot, thus, rightfully assert that the six sachets seized from Arguson
were the very same objects tested by C/I Geronimo and offered in court in
proving the corpus delicti.
Adding a negative dimension to the prosecutions case is the nonpresentation of C/I Geronimo and the presentation in her stead of
Inspector Tria to testify on the chemical report C/I Geronimo prepared.
While Inspector Tria can plausibly testify on the fact that C/I Geronimo
prepared the chemical report in the regular course of her duties, she,
Inspector Tria, was incompetent to state that the specimen her former
colleague analyzed was in fact shabu and was the same specimen
delivered to the laboratory for chemical analysis.
To be sure, the Court, notably in People v. Bandang, has held that
the non-presentation of the forensic chemist in illegal drug cases is an
insufficient cause for acquittal. In it, the accused persons were convicted
of illegal sale of shabu even if the forensic chemist who prepared the
corresponding laboratory report was not presented. Thus, we wrote:
366

[30]

TSN, October 23, 2001, pp. 18-19.

362
x x x In People vs. Uy, we ruled that a forensic chemist is a public
officer and as such, his report carries the presumption of regularity in the
performance of his function and duties. Corollarily, under Section 44 of
Rule 130, x x x entries in official records made in the performance of
official duty are prima facie evidence of the facts therein stated. Omeros
reports that the seven sachets of white crystalline substance were positive
for methylamphetamine hydrochloride or shabu are, therefore, conclusive
in the absence of evidence proving the contrary, as in this case.
Second, it must be stressed that Atty. Enriquez raises his objection
to the Initial Laboratory Report and Chemistry Report No. D-1585-00
only now. He should have objected to their admissibility at the time they
were being offered. Otherwise, the objection shall be considered waived
and such evidence will form part of the records of the case as competent
and admissible evidence. The familiar rule in this jurisdiction is that the
admissibility of certain documents x x x cannot be raised for the first time
on appeal.367[31] (Emphasis added.)
It should be pointed out, however, that the Bandang ruling was cast
against a different backdrop where: (1) the seized crystalline substance
was the same item examined and tested positive for shabu and presented
in court, implying that the identity and integrity of prohibited drug was
safeguarded throughout, a circumstance not obtaining in this case; (2)
there was a compelling reason for not presenting the examining forensic
chemist, i.e., the parties stipulated that the confiscated seven plastic bags
have been identified and examined and that the chemist stated in his report
that the substance is positive for shabu. In this case, C/I Geronimos
resignation from the service is not, standing alone, a justifying factor for
the prosecution to dispense with her testimony; and (3) accused Bandang,
et al. did not raise any objection to the chemical report during trial, unlike
here where accused-appellant objected to Inspector Trias competency to
testify on the Geronimo chemical report.
At any rate, Inspector Trias testimony on, and the presentation of,
the chemistry report in question only established, at best, the existence,
due execution, and authenticity of the results of the chemistry analysis. 368
[32]
It does not prove compliance with the requisite chain of custody over
the confiscated substance from the time of seizure of the evidence. In this
regard, the Court in effect stated in Malillin that unless the state can show
by records or testimony that the integrity of the evidence has not been
compromised by accounting for the continuous whereabouts of the object
evidence at least between the time it came into the possession of the police
officers until it was tested in the laboratory, 369[33] then the prosecution
cannot maintain that it was able to prove the guilt of the accused beyond
reasonable doubt. So it was that in People v. Kimura the Court said that in
establishing the corpus delicti, proof beyond reasonable doubt demands
367[31]
368
369

G.R. No. 151314, June 3, 2004, 430 SCRA 570, 586-587.

Sanchez, supra note 19.
[33]
Supra note 21, at 634.
[32]

363
that unwavering exactitude370[34] be observed, a demand which may be
addressed by hewing to the chain-of-custody rule. Evidently, the
prosecution has not proved that the substance seized in front of the
McDonalds was the same substance adduced in evidence as an
indispensable element of corpus delicti of the crime, which failure
produces a serious doubt as to accused-appellants guilt.371[35]
Both the trial and appellate courts made much of the presumption
of regularity in the performance of official functions both with respect to
the acts of PO3 Ramos and other PNP personnel at Camp Vicente Lim. To
a point, the reliance on the presumptive regularity is tenable. This
presumption is, however, disputable and may be overturned by affirmative
evidence of irregularity or failure to perform a duty; 372[36] any taint of
irregularity vitiates the performance and negates the presumption. And as
earlier discussed, the buy bust team committed serious lapses in the
handling of the prohibited item from the very start of its operation, the
error of which the PNP R-IV command later compounded. The Court need
not belabor this matter anew.
Lest it be overlooked, the presumption of regularity in the
performance of official duty always yields to the presumption of
innocence and does not constitute proof beyond reasonable doubt. 373[37] We
held in one case:
The presumption of regularity in the performance of official duty cannot
be used as basis for affirming accused-appellants conviction because,
[f]irst, the presumption is precisely just thata mere presumption. Once
challenged by evidence, as in this case, x x x [it] cannot be regarded as
binding truth. Second, the presumption of regularity in the performance of
official functions cannot preponderate over the presumption of innocence
that prevails if not overthrown by proof beyond reasonable doubt.374[38]
For failure then of the prosecution to establish the guilt of accusedappellant beyond reasonable doubt, she must perforce be exonerated from
criminal liability. The facts and the law of the case call for this kind of
disposition.
But a final consideration. The Court is cognizant of the
campaign of the police and other drug enforcement agencies against
the growing drug menace in the country. Unfortunately, their best
efforts, particularly successful honest-to-goodness buy-bust
operations, sometimes still end up in the acquittal of illegal drug
manufacturers, distributors, pushers and/or lesser players, even when
nabbed in flagrante, simply because drug enforcement operatives tend
370

[34]

371

[35]

G.R. No. 130805, April 27, 2004, 428 SCRA 51, 70.
Id.
372
[36]
Sevilla v. Cardenas, G.R. No. 167684, July 31, 2006, 497 SCRA 428, 443; citing Mabsucang v.
Judge Balgos, 446 Phil. 217, 224 (2003).
373
[37]
People v. Caete, G.R. No. 138400, July 11, 2002, 384 SCRA 411, 424.
374
[38]
People v. Tan, G.R. No. 129376, May 29, 2002, 382 SCRA 419, 444.

364
to compromise the integrity and evidentiary worth of the seized illegal
items. This aberration is oftentimes in turn attributable to the
unfamiliarity of police operatives of extant rules and procedures
governing the custody, control, and handling of seized drugs. This is,
thus, an opportune time to remind all concerned about these rules and
procedures and the guiding jurisprudence. And to put things in the
proper perspective, non-compliance with the legal prescriptions of the
Dangerous Drugs Act, as amended, is, as we made abundantly clear in
People v. Sanchez, not necessarily fatal to the prosecution of drugrelated cases; that police procedures may still have some lapses. These
lapses, however, must be recognized, addressed, and explained in
terms of their justifiable grounds, and the integrity and evidentiary
value of the evidence seized must be shown to have been preserved by
the apprehending officer or team.
To be forewarned is to be forearmed.
WHEREFORE, the CA Decision dated July 19, 2007 in CA-G.R.
CR-H.C. No. 00476, affirming that of the RTC, Branch 53 in Manila
which found her guilty of violating Sec. 15, Art. III of RA 6425 and
imposed upon her the penalty of reclusion perpetua and a fine of PhP
500,000, is hereby REVERSED and SET ASIDE. Accused-appellant
Monalyn Cervantes y Solar is ACQUITTED on the ground of reasonable
doubt and is accordingly immediately RELEASED from custody unless
she is being lawfully held for some lawful cause.
Presumption of innocence leads to the accuseds acquittal due to inconsistent
testimonies of prosecutions witnesses
Inconsistent testimonies of prosecutions
witnesses entitles the accused to acquittal
based on his constitutional presumption of
innocence.
ELY AGUSTIN VS. PEOPLE OF THE PHILIPPINES, G.R. No. 158788,
April 30, 2008
FACTS:
On October 1, 1995, at 7:20 in the evening, armed men robbed the house of
spouses George and Rosemarie Gante in Barangay Pug-os, Cabugao, Ilocos Sur,
forcibly taking with them several valuables, including cash amounting to
P600,000.00.375[3] Forthwith, the spouses reported the matter to the police, who, in
turn, immediately applied for a search warrant with the Municipal Trial Court
(MTC) of Cabugao, Ilocos Sur.376[4] The MTC issued Search Warrant No. 5-95,377
375
376
377

365
[5]

directing a search of the items stolen from the victims, as well as the firearms
used by the perpetrators. One of the target premises was the residence of petitioner,
named as one of the several suspects in the crime.
On October 6, 1995, armed with the warrant, policemen searched the premises of
petitioner's house located in Sitio Padual, Barangay Pug-os, Cabugao, Ilocos Sur.
The search resulted in the recovery of a firearm and ammunitions which had no
license nor authority to possess such weapon, and, consequently, the filing of a
criminal case, docketed as Criminal Case No. 1651-K, for violation of P.D. No.
1866 or Illegal Possession of Firearms, against petitioner before the RTC.
Thereafter, trial ensued. The prosecution presented eight witnesses
namely: (1) P/Insp. Anselmo Baldovino378[7] (P/Insp. Baldovino), a police
investigator and the applicant for the search warrant; (2) Rosemarie Gante (Gante),
the victim of the robbery and private complainant; (3) Ignacio Yabes (Yabes), a
Municipal Local Government Operations Officer of the Department of Interior and
Local Government who was the civilian witness to the search; (4) P/Supt.
Bonifacio Abian379[8] (P/Supt. Abian), Deputy Provincial Director of the Philippine
National Police and part of the search team; (5) SPO4 Marino Peneyra (SPO4
Peneyra); (6) SPO1 Franklin Cabaya (SPO1 Cabaya); (7) SPO1 James Jara
(SPO1 Jara); and (8) SPO2 Florentino Renon (SPO2 Renon).
The prosecution's case centered mainly on evidence that during the
enforcement of the search warrant against petitioner, a .38 caliber revolver firearm
was found in the latter's house.380[9] In particular, SPO1 Cabaya testified that while
poking at a closed rattan cabinet near the door, he saw a firearm on the lower
shelf.381[10] The gun is a .38 caliber revolver382[11] with five live ammunitions,383[12]
which he immediately turned over to his superior, P/Insp. Baldovino.384[13]
Petitioner anchored his defense on denial and frame-up. The petitioner
and his wife Lorna assert that petitioner does not own a gun.385[14] Lorna testified
that she saw a military man planting the gun.386[15]
After trial, the RTC rendered its Decision387[16] dated July 7, 1999, finding
petitioner guilty beyond reasonable doubt.
Petitioner filed an appeal with the CA, which rendered the assailed
Decision388[18] dated January 22, 2003, affirming with modification the decision of
the trial court, thus:
378
379
380
381
382
383
384
385
386
387
388

366

WHEREFORE, except for the MODIFICATION reducing and changing

the maximum of the prison term imposed to Five (5) Years Four (4) Months and
Twenty (20) Days, the appealed Decision is otherwise AFFIRMED.
Hence, the instant Petition for Review, on the principal ground that the CA
gravely erred in finding that the guilt of petitioner has been proven beyond
reasonable doubt; and more specifically, in giving weight and credence to the
testimonies of the police officers who searched the house of the petitioner which
are replete with material and irreconcilable contradictions and in giving SPO1
Cabaya the presumption of regularity in the performance of duty despite the claim
of Lorna that the .38 caliber revolver was planted.
Petitioner insists that the trial court and the CA committed reversible error
in giving little credence to his defense that the firearm found in his residence was
planted by the policemen. He also alleges material inconsistencies in the
testimonies of the policemen as witnesses for the prosecution, which amounted to
failure by the prosecution to prove his guilt beyond reasonable doubt.
HELD:
The petition has merit.
The paramount issue in the present case is whether the prosecution
established the guilt of petitioner beyond reasonable doubt; and in the
determination thereof, a factual issue, that is, whether a gun was found in the house
of petitioner, must necessarily be resolved.
It is a well-entrenched rule that appeal in criminal cases opens the whole
case wide open for review.389[20]
In convicting petitioner, the RTC relied heavily on the testimony of SPO1
Cabaya, who testified that he discovered the subject firearm in a closed cabinet
inside the former's house. The trial court brushed aside petitioner's defense of
denial and protestations of frame-up. The RTC justified giving full credence to
Cabaya's testimony on the principles that the latter is presumed to have performed
his official duties regularly; that he had no ill motive to frame-up petitioner; and
that his affirmative testimony is stronger than petitioner's negative testimony.390[21]
Weighing these findings of the lower courts against the petitioner's claim
that the prosecution failed to prove its case beyond reasonable doubt due to the
material inconsistencies in the testimonies of its witnesses, the Court finds, after a
meticulous examination of the records that the lower courts, indeed, committed a
reversible error in finding petitioner guilty beyond reasonable doubt of the crime he
was charged with. The RTC and the CA have overlooked certain facts and
circumstances that would have interjected serious apprehensions absolutely
impairing the credibility of the witnesses for the prosecution.
389
390

367

The conflicting testimonies of the prosecution witnesses as to who actually

entered the house and conducted the search, who discovered the gun, and who
witnessed the discovery are material matters because they relate directly to a fact
in issue; in the present case, whether a gun has been found in the house of
petitioner; or to a fact to which, by the process of logic, an inference may be made
as to the existence or non-existence of a fact in issue. 391[24] As held in United States
v. Estraa,392[25] a material matter is the main fact which is the subject of inquiry or
any circumstance which tends to prove that fact or any fact or circumstance
which tends to corroborate or strengthen the testimony relative to the subject
of inquiry or which legitimately affects the credit of any witness who testifies.
The evidence of prosecution is severely weakened by several
contradictions in the testimonies of its witnesses. Especially damaged is the
credibility of SPO1 Cabaya, none of whose declarations on material points jibes
with those of the other prosecution witnesses. In the face of the vehement and
consistent protestations of frame-up by petitioner and his wife, the trial court and
the CA erred in overlooking or misappreciating these inconsistencies. The
inconsistencies are material as they delve into the very bottom of the question of
whether or not SPO1 Cabaya really found a firearm in the house of petitioner.
SPO1 Cabaya testified that he entered the house with four other
policemen, among whom were SPO1 Jara, SPO4 Peneyra, SPO3 Bernabe Ocado
(SPO3 Ocado) and another one whose name he does not remember.393[26] While
searching, he discovered the firearm in the kitchen, inside a closed cabinet near the
door.394[27] He said that SPO1 Jara was standing right behind him, at a distance of
just one meter, when he (Cabaya) saw the firearm;395[28] and that he picked up the
gun, held it and showed it to SPO1 Jara.396[29] He asserted that SPO2 Renon was
not one of those who went inside the house.397[30]
However, SPO1 Jara, the best witness who could have corroborated SPO1
Cabaya's testimony, related a different story as to the circumstances of the firearm's
discovery. SPO1 Jara testified that he merely conducted perimeter security during
the search and did not enter or participate in searching the house. 398[32] SPO1 Jara
testified that he remained outside the house throughout the search, and when SPO1
Cabaya shouted and showed a gun, he was seven to eight meters away from
him.399[33] He could not see the inside of the house and could see Cabaya only from
his chest up.400[34] He did not see the firearm at the place where it was found, but
saw it only when Cabaya raised his arm to show the gun, which was a revolver.401
391
392
393
394
395
396
397
398
399
400
401

368
[35]

He is certain that he was not with Cabaya at the time the latter discovered
the firearm.402[36] He further testified that SPO3 Ocado, who, according to SPO1
Cabaya was one of those near him when he (Cabaya) discovered the firearm,
stayed outside and did not enter or search the house.403[37]
P/Insp. Baldovino testified that only SPO2 Renon conducted the search
and entered the house together with SPO1 Cabaya, 404[38] directly contradicting
SPO1 Cabaya's testimony that he, together with SPO1 Jara, SPO4 Peneyra, SPO3
Ocado, and another one whose name he cannot recall, were inside the house when
he discovered the gun405[39] and that SPO2 Renon did not enter the house of
petitioner.406[40]
The testimonies of the other prosecution witnesses further muddled the
prosecution evidence with more inconsistencies as to matters material to the
determination of whether a gun had in fact been found in the house of petitioner.
SPO4 Peneyra testified that Yabes stayed outside of the during the search; 407[59]
whereas SPO1 Jara testified that Yabes was inside, at the sala, but the latter saw the
gun only when SPO1 Cabaya raised it.408[60]
Although the Court has held that frame-up is inherently one of the weakest
defenses,409[61] as it is both easily concocted and difficult to prove,410[62] in the present case, the lower courts seriously
erred in ignoring the weakness of the prosecution's evidence and its failure to prove the guilt of petitioner beyond reasonable
doubt. The rule requiring a claim of frame-up to be supported by clear and convincing evidence411[63] was never intended to shift to
the accused the burden of proof in a criminal case. As the Court held in People of the Philippines v.
Ambih:412[64]
[W]hile the lone defense of the accused that he was the victim of a frame-up is
easily fabricated, this claim assumes importance when faced with the rather shaky
nature of the prosecution evidence. It is well to remember that the prosecution must
rely, not on the weakness of the defense evidence, but rather on its own proof
which must be strong enough to convince this Court that the prisoner in the dock
deserves to be punished. The constitutional presumption is that the accused is
innocent even if his defense is weak as long as the prosecution is not strong
enough to convict him.413[65] (Emphasis supplied)
In People of the Philippines v. Gonzales,414[66] the Court held that where
there was material and unexplained inconsistency between the testimonies of two
principal prosecution witnesses relating not to inconsequential details but to the
402
403
404
405
406
407
408
409
410
411
412
413
414

369
alleged transaction itself which is subject of the case, the inherent improbable
character of the testimony given by one of the two principal prosecution witnesses
had the effect of vitiating the testimony given by the other principal prosecution
witness. The Court ruled that it cannot just discard the improbable testimony of one
officer and adopt the testimony of the other that is more plausible. In such a
situation, both testimonies lose their probative value. The Court further held:
Why should two (2) police officers give two (2) contradictory descriptions
of the same sale transaction, which allegedly took place before their very eyes, on
the same physical location and on the same occasion? We must conclude that a
reasonable doubt was generated as to whether or not the "buy-bust" operation ever
took place.415[69]
In the present case, to repeat, the glaring contradictory testimonies of the
prosecution witnesses generate serious doubt as to whether a firearm was really
found in the house of petitioner. The prosecution utterly failed to discharge its
burden of proving that petitioner is guilty of illegal possession of firearms beyond
reasonable doubt. The constitutional presumption of innocence of petitioner has
not been demolished and therefore petitioner should be acquitted of the crime he
was with.
Read also:
P. vs. Bernardino, January 28, 1991
1-a. P vs. Flores, 165 SCRA 71
1-b. Aguirre vs. P., 155 SCRA 337
1-c. P. vs. Guinto, 184 SCRA 287
1-d. P. vs. Solis, 182 SCRA 182
1-e. P. vs. Capilitan, 182 SCRA 313
2. Alonso vs. IAC, 151 SCRA 552
3. P vs. Lopez, 74 SCRA 205
4. P vs. Quiason, 78 SCRA 513
5. P vs. Jose, 37 SCRA 450
6. P vs. Poblador, 76 SCRA 634
7. Dumlao vs. Comelec, 95 SCRA 392
3. Presumption of innocence in general and in the order of trial
PEOPLE VS. DE LOS SANTOS, 355 SCRA 415
PEOPLE VS. SATURNO, 355 SCRA 578
What is the EQUIPOISE RULE?
A.

415

If the evidence in a criminal case is evenly balanced, the constitutional

presumption of innocence tilts the scale of justice in favor of the accused
and he should be acquitted from the crime charged.

370
Where the inculpatory facts and circumstances are capable of two or more
interpretations one of which is consistent with the innocence of the
accused and the other consistent with his guilt, then the evidence does not
fulfill the test of moral certainty and is not sufficient to support a
conviction.
Read:
1. Alejandro vs. Pepito, 96 SCRA 322
3. Sacay vs. Sandiganbayan, July 10,l986
SACAY VS. SANDIGANBAYAN
G.R. No. L-66497-98,July 10, 1986
FACTS:
1. At the initial hearing, the testimony of the prosecution witnesses was
interrupted when the accused, through counsel, admitted that he shot the
deceased but claimed that it was done in self-defense and fulfillment of
duty. The prosecution then moved that the reverse procedure be adopted in
view of the admission that the accused shot the deceased. No objection
was interposed by the accused or his counsel.
2. On appeal with the S.C. after he was convicted the accused later
claims that there was a violation of the order of trial provided for in Sec. 3,
Rule 119 of the Rules of Court. He also cites the case of Alejandro vs.
Pepito, 96 SCRA 322, wherein the S.C. ruled that : "It behooved the
respondent Judge to have followed the sequence of trial set forth x x x the
form of a trial is also a matter of public order and interest; the orderly
course of procedure requires that the prosecution should go forward and
present all of its proof in the first instance."
HELD:
The case of Alejandro vs. Pepito is not applicable inasmuch as the
accused in the case at bar did not object to the procedure followed. In fact
in the said Alejandro case, the Court also stated:
"It is true that in the case of U.S. vs. Gaoiran, 17 Phil. 404 (l910),
relied upon by the prosecution and the trial Court, the defense has
produced its proofs before the prosecution presented its case, and it was
held that no substantial rights of the accused were prejudiced. There is one
radical difference, however, since in that case no objection was entered in
the Court below to the procedure followed in the presentation of proof. In
this case, the change in the order of trial made by respondent Judge was
promptly and timely objected to by the defense."

371
In fact it should be noted that under the newly adopted 1985 Rules of
Criminal Procedure (Sec. 3e), Rule 119)the said procedure is now
expressly sanctioned. Thus:
"However, when the accused admits the act or omission charged in
the complaint or information but interposes a lawful defense, the order of
trial may be modified accordingly."
3.Sec. 3(3), Rule 119 , 1985 Rules on Criminal
amended.

Procedure , as

4. Other cases Read:

1. P vs. Opida, June 13,1986
2. P vs. Tempongko, October 2,1986
3. P vs. Drammayo, 42 SCRA 59
4. P vs. Fernando, 145 SCRA 151
5. P vs. Tolentino, 145 SCRA 597
6. Castillo vs. Filtex, September 30,1983
7. Dumlao vs. COMELEC, supra
5. Right to counsel-during trial
1. Reason behind the requirement
2. Obligation of the judge to an accused who
without a lawyer to assist him

appears in court

Read:
1. P vs. Holgado,85 Phil. 752
2. Delgado vs. CA, 145 SCRA 357
3. P vs. Cuison, 193 Phil. 296
5-a. The right to be heard by himself and counsel during trial
Effect of the fact that accused was represented by a NON-LAWYER at the
early part of the trial but a full-pledged lawyer took over as his counsel
when he presented his evidence. (Also important in your criminal law as
to the distinctions between robbery and grave coercion)
PEDRO CONSULTA VS. PEOPLE, G.R. No. 179462, February 12,
2009

CARPIO MORALES, J.:

372
The Court of Appeals having, by Decision of April 23, 2007, 416[1]
affirmed the December 9, 2004 Decision of the Regional Trial Court of
Makati City, Branch 139 convicting Pedro C. Consulta (appellant) of
Robbery with Intimidation of Persons, appellant filed the present petition.
The accusatory portion of the Information against appellant reads:
That on or about the 7th day of June, 1999, in the City of Makati,
Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent of gain, and by means of force, violence and
intimidation, did then and there willfully, unlawfully and feloniously take,
steal and carry away complainants NELIA R. SILVESTRE gold necklace
worth P3,500.00, belonging to said complainant, to the damage and
prejudice of the owner thereof in the aforementioned amount of
P3,500.00.
CONTRARY TO LAW.417[2]
underscoring supplied)

(Emphasis in the original,

From the evidence for the prosecution, the following version is

gathered:
At about 2:00 oclock in the afternoon of June 7, 1999, private
complainant Nelia R. Silvestre (Nelia), together with Maria Viovicente
(Maria) and Veronica Amar (Veronica), boarded a tricycle on their way to
Pembo, Makati City. Upon reaching Ambel Street, appellant and his
brother Edwin Consulta (Edwin) blocked the tricycle and under their
threats, the driver alighted and left. Appellant and Edwin at once shouted
invectives at Nelia, saying Putang ina mong matanda ka, walanghiya ka,
kapal ng mukha mo, papatayin ka namin. Appellant added Putang ina
kang matanda ka, wala kang kadala dala, sinabihan na kita na kahit saan
kita matiempuhan, papatayin kita.
Appellant thereafter grabbed Nelias 18K gold necklace with a
crucifix pendant which, according to an alajera in the province, was of
18k gold, and which was worth P3,500, kicked the tricycle and left saying
Putang ina kang matanda ka! Kayo mga nurses lang, anong
ipinagmamalaki niyo, mga nurses lang kayo. Kami, marami kaming mga
abogado. Hindi niyo kami maipapakulong kahit kailan!
Nelia and her companions immediately went to the Pembo
barangay hall where they were advised to undergo medical examination.
They, however, repaired to the Police Station, Precinct 8 in Comembo,
Makati City and reported the incident. They then proceeded to Camp
Crame where they were advised to return in a few days when any injuries
they suffered were expected to manifest.
416

417

[1]

Penned by Associate Justice Estela M. Perlas-Bernabe, with the concurrence of Associate Justices Marina L.
Buzon and Lucas P. Bersamin; CA rollo, pp. 166-176.
[2]
Records, p. 1.

373

Nine days after the incident or on June 16, 1999, Nelia submitted a
medico-legal report and gave her statement before a police investigator.
Denying the charge, appellant branded it as fabricated to spite him
and his family in light of the following antecedent facts:
He and his family used to rent the ground floor of Nelias house in
Pateros. Nelia is his godmother. The adjacent house was occupied by
Nelias parents with whom she often quarreled as to whom the rental
payments should be remitted. Because of the perception of the parents of
Nelia that his family was partial towards her, her parents disliked his
family.
Nelias father even filed a case for maltreatment against him
which was dismissed and, on learning of the maltreatment charge, Nelia
ordered him and his family to move out of their house and filed a case
against him for grave threats and another for light threats which were
dismissed or in which he was acquitted.
Appellant went on to claim that despite frequent transfers of
residence to avoid Nelia, she would track his whereabouts and cause
scandal.
Appellants witness Darius Pacaa testified that on the date of the
alleged robbery, Nelia, together with her two companions, approached him
while he was at Ambel Street in the company of Michael Fontanilla and
Jimmy Sembrano, and asked him (Pacaa) if he knew a bald man who is
big/stout with a big tummy and with a sister named Maria. As he replied
in the affirmative, Nelia at once asked him to accompany them to
appellants house, to which he acceded. As soon as the group reached
appellants house, appellant, on his (Pacaas) call, emerged and on seeing
the group, told them to go away so as not to cause trouble. Retorting,
Nelia uttered Mga hayop kayo, hindi ko kayo titigilan.
Another defense witness, Thelma Vuesa, corroborated Pacaas
account.
The trial court, holding that intent to gain on appellants part is
presumed from the unlawful taking of the necklace, and brushing aside
appellants denial and claim of harassment, convicted appellant of
Robbery, disposing as follows:
WHEREFORE, premises considered, this Court finds accused
PEDRO C. CONSULTA guilty beyond reasonable doubt, as principal of
the felony of Robbery with Intimidation of Persons defined and penalized
under Article 294, paragraph No. 5, in relation to Article 293 of the
Revised Penal Code and hereby sentences him to suffer the penalty of
imprisonment from one (1) year, seven (7) months and eleven (11) days of
arresto mayor, as minimum, to eight (8) years, eight (8) months and one
(1) day of prision mayor, as maximum, applying the Indeterminate

374
Sentence Law, there being no mitigating or aggravating circumstances
which attended the commission of the said crime.
The said accused is further ordered to pay unto the complainant
Nelia Silvestre the amount of P3,500.00 representing the value of her
necklace taken by him and to pay the costs of this suit.
SO ORDERED. (Italics in the original, underscoring supplied)
The appellate court
modification on the penalty.

affirmed

appellants conviction

with

In his present appeal, appellant raises the following issues:

(1)

Whether or not appellant was validly arraigned;

(2)

Whether or not appellant was denied due process having been represented
by a fake lawyer during arraignment, pre-trial and presentation of
principal witnesses for the prosecution;
The first two issues, which appellant raised before the appellate
court only when he filed his Motion for Reconsideration of said courts
decision, were resolved in the negative in this wise:
On the matter of accused-appellants claim of having been denied
due process, an examination of the records shows that while accusedappellant was represented by Atty. Jocelyn P. Reyes, who seems not a
lawyer, during the early stages of trial, the latter withdrew her appearance
with the conformity of the former as early as July 28, 2000 and
subsequently, approved by the RTC in its Order dated August 4, 2000.
Thereafter, accused-appellant was represented by Atty. Rainald C. Paggao
from the Public Defenders (Attorneys) Office of Makati City. Since the
accused-appellant was already represented by a member of the Philippine
Bar who principally handled his defense, albeit unsuccessfully, then he
cannot now be heard to complain about having been denied of due
process.418[3] (Underscoring supplied)
That appellants first counsel may not have been a member of the
bar does not dent the proven fact that appellant prevented Nelia and
company from proceeding to their destination. Further, appellant was
afforded competent representation by the Public Attorneys Office during
the presentation by the prosecution of the medico-legal officer and during
the presentation of his evidence. People v. Elesterio419[4] enlightens:
As for the circumstance that the defense counsel turned out later
to be a non-lawyer, it is observed that he was chosen by the accused
himself and that his representation does not change the fact that Elesterio

418

[3]

419

[4]

Rollo, p. 169
G.R. No. 63971, May 9, 1989, 173 SCRA 243, 249.

375
was undeniably carrying an unlicensed firearm when he was arrested. At
any rate, he has since been represented by a member of the Philippine bar,
who prepared the petition for habeas corpus and the appellants brief.
(Underscoring supplied)
EVEN
IF
THE
DECISION
OF
CONVICTION IS ALREADY FINAL AND
EXECUTORY, THE CASE MAY STILL
BE RE-OPENED IF THERE IS GROSSNEGLIGENCE ON THE PART OF
ACCUSEDS
COUNSEL
THEREBY
VIOLATING HIS RIGHT TO DUE
PROCESS/COUNSEL.
JOHN HILARIO VS. PEOPLE OF THE PHILIPPINES, G.R. No.
161070, April 14, 2008
THE FACTS:
Petitioner, together with one Gilbert Alijid (Alijid), was charged with two
counts
of Murder in the Regional Trial Court (RTC), Branch 76, Quezon City
to which petitioner, assisted by counsel de parte, pleaded not guilty.
420[3]

During trial, Atty. Raul Rivera of the Public Attorney's Office (PAO),
counsel of Alijid, took over representing petitioner in view of the death of the
latter's counsel.
On December 5, 2001, the RTC rendered its Decision 421[4] finding
petitioner and his co-accused Alijid guilty beyond reasonable doubt of the crime of
homicide and sentencing them to suffer imprisonment of eight (8) years and one
(1) day of prision mayor to fourteen (14) years and eight (8) months of reclusion
temporal in each count.
On May 10, 2002, petitioner, this time unassisted by counsel, filed with the
RTC a Petition for Relief422[5] from the Decision dated December 5, 2001 together
with an affidavit of merit. In his petition, petitioner contended that at the time of
the promulgation of the judgment, he was already confined at Quezon City Jail and
was directed to be committed to the National Penitentiary in Muntinlupa; that he
had no way of personally filing the notice of appeal thus he instructed his lawyer to
file it on his behalf; that he had no choice but to repose his full trust and confidence
to his lawyer; that he had instructed his lawyer to file the necessary motion for
reconsideration or notice of appeal; that on May 2, 2002, he was already
incarcerated at the New Bilibid Prisons, Muntinlupa City and learned from the
grapevine of his impending transfer to the Iwahig Penal Colony, Palawan; that
believing that the notice of appeal filed by his counsel prevented the Decision
dated December 5, 2001 from becoming final to warrant his transfer, he instructed
420

[3]

421

[4]

422

[5]

Docketed as Criminal Case Nos. Q-00-91647-48.

Penned by Judge Monina A. Zenarosa, rollo, pp. 36-52.
Id. at 53-60.

376
his representative to get a copy of the notice of appeal from the RTC; that no
notice of appeal was filed by his lawyer in defiance of his clear instructions; and
that the RTC Decision showed that it was received by his counsel on February 1,
2002 and yet the counsel did not inform him of any action taken thereon.
I S S U E:
Whether or not the delay in appealing the instant case due to the defiance
or failure of the petitioner's counsel de oficio to seasonably file a Notice of Appeal,
constitutes excusable negligence to entitle the undersigned detention prisoner/
petitioner to pursue his appeal?
Whether or not pro hac vice, the mere invocation of justice warrants the
review of a final and executory judgment?
HELD:
Petitioner contends that the negligence of his counsel de oficio cannot be
binding on him for the latter's defiance of his instruction to appeal automatically
breaks the fiduciary relationship between counsel-client and cannot be against the
client who was prejudiced; that this breach of trust cannot easily be concocted in
this situation considering that it was a counsel de oficio, a lawyer from PAO, who
broke the fiduciary relationship; that the assailed CA Resolutions both harped on
technicalities to uphold the dismissal by the RTC of his petition for relief; that
reliance on technicalities to the prejudice of petitioner who is serving 14 years
imprisonment for a crime he did not commit is an affront to the policy promulgated
by this Court that dismissal purely on technical grounds is frowned upon
especially if it will result to unfairness; and that it would have been for the best
interest of justice for the CA to have directed the petitioner to complete the records
instead of dismissing the petition outright.
In his Comment, the OSG argues that the mere invocation of justice does
not warrant the review of an appeal from a final and executory judgment; that
perfection of an appeal in the manner and within the period laid down by law is not
only mandatory but jurisdictional and failure to perfect the appeal renders the
judgment sought to be reviewed final and not appealable; and that petitioner's
appeal after the finality of judgment of conviction is an exercise in futility, thus the
RTC properly dismissed petitioner's petition for relief from judgment. The OSG
further claims that notice to counsel is notice to clients and failure of counsel to
notify his client of an adverse judgment would not constitute excusable negligence
and therefore binding on the client.
We grant the petition.
A litigant who is not a lawyer is not expected to know the
rules of procedure. In fact, even the most experienced lawyers get tangled in
the web of procedure.423[12] We have held in a civil case that to demand as
much from ordinary citizens whose only compelle intrare is their sense of
423

[12]

See Telan v. Court of Appeals, G.R. No. 95026, October 4, 1991, 202 SCRA 534, 541.

377
right would turn the legal system into an intimidating monstrosity where an
individual may be stripped of his property rights not because he has no right
to the property but because he does not know how to establish such right.424[13]
This finds application specially if the liberty of a person is at stake. As we
held in Telan v. Court of Appeals:
The right to counsel in civil cases exists just as forcefully as in criminal
cases, especially so when as a consequence, life, liberty, or property is subjected to
restraint or in danger of loss.
In criminal cases, the right of an accused person to be assisted by a
member of the bar is immutable. Otherwise, there would be a grave denial of
due process. Thus, even if the judgment had become final and executory, it
may still be recalled, and the accused afforded the opportunity to be heard by
himself and counsel.
xxxx
Even the most experienced lawyers get tangled in the web of procedure.
The demand as much from ordinary citizens whose only compelle intrare is their
sense of right would turn the legal system into an intimidating monstrosity where
an individual may be stripped of his property rights not because he has no right to
the property but because he does not know how to establish such right.
The right to counsel is absolute and may be invoked at all times. More so,
in the case of an on-going litigation, it is a right that must be exercised at every step
of the way, with the lawyer faithfully keeping his client company.
No arrangement or interpretation of law could be as absurd as the
position that the right to counsel exists only in the trial courts and that
thereafter, the right ceases in the pursuit of the appeal.425[14] (Emphasis
supplied)
To repeat the ruling in Telan, no arrangement or interpretation of law
could be as absurd as the position that the right to counsel exists only in the trial
courts and that thereafter, the right ceases in the pursuit of the appeal. 426[15] It is
even more important to note that petitioner was not assisted by counsel when he
filed his petition for relief from judgment with the RTC.
It cannot be overstressed therefore, that in criminal cases, as held in Telan,
the right of an accused person to be assisted by a member of the bar is immutable;
otherwise, there would be a grave denial of due process.
Cases should be determined on the merits after full opportunity to all
parties for ventilation of their causes and defenses, rather than on technicality or
some procedural imperfections. In that way, the ends of justice would be served
424

[13]

425[14]
426

[15]

Id.
Id. at 540-541.
Id. at 541.

378
better.427[16]
While as a general rule, the failure of petitioner to file his motion for
reconsideration within the 15-day reglementary period fixed by law rendered the
resolution final and executory, we have on some occasions relaxed this rule. Thus,
in Barnes v. Padilla428[17] we held:
However, this Court has relaxed this rule in order to serve substantial
justice considering (a) matters of life, liberty, honor or property, (b) the
existence of special or compelling circumstances, (c) the merits of the case, (d)
a cause not entirely attributable to the fault or negligence of the party favored
by the suspension of the rules, (e) a lack of any showing that the review sought
is merely frivolous and dilatory, and (f) the other party will not be unjustly
prejudiced thereby.
Invariably, rules of procedure should be viewed as mere tools designed to
facilitate the attainment of justice. Their strict and rigid application, which would
result in technicalities that tend to frustrate rather than promote substantial justice,
must always be eschewed. Even the Rules of Court reflects this principle. The
power to suspend or even disregard rules can be so pervasive and compelling as to
alter even that which this Court itself had already declared to be final.
In De Guzman v. Sandiganbayan, this Court, speaking through the late
Justice Ricardo J. Francisco, had occasion to state:
The Rules of Court was conceived and promulgated to set forth guidelines
in the dispensation of justice but not to bind and chain the hand that dispenses it,
for otherwise, courts will be mere slaves to or robots of technical rules, shorn of
judicial discretion. That is precisely why courts in rendering justice have always
been, as they ought to be guided by the norm that when on the balance,
technicalities take a backseat against substantive rights, and not the other way
around. Truly then, technicalities, in the appropriate language of Justice Makalintal,
"should give way to the realities of the situation.
Indeed, the emerging trend in the rulings of this Court is to afford every
party litigant the amplest opportunity for the proper and just determination of his
cause, free from the constraints of technicalities.429[18]
Rules of procedure are mere tools designed to expedite the decision or
resolution of cases and other matters pending in court. A strict and rigid application
of rules that would result in technicalities that tend to frustrate rather than promote
substantial justice must be avoided.430[21]
Even if the judgment had become final and executory, it may still be
recalled, and the accused afforded the opportunity to be heard by himself and
427

[16]

428

[17]

429

[18]

430

[21]

Garcia v. Philippine Airlines, Inc., supra note 11, at 781.

G.R. No. 160753, September 30, 2004, 439 SCRA 675.
Id. at 686-687.
Cusi-Hernandez v. Spouses Diaz, 390 Phil. 1245, 1252 (2000).

379
counsel.431[22] However, instead of remanding the case to the CA for a decision on
the merits, we opt to resolve the same so as not to further delay the final disposition
of this case.
In all criminal prosecutions, the accused shall have the right to
appeal in the manner prescribed by law. The importance and real purpose of the
remedy of appeal has been emphasized in Castro v. Court of Appeals432[27] where
we ruled that an appeal is an essential part of our judicial system and trial courts are
advised to proceed with caution so as not to deprive a party of the right to appeal
and instructed that every party-litigant should be afforded the amplest opportunity
for the proper and just disposition of his cause, freed from the constraints of
technicalities. While this right is statutory, once it is granted by law, however,
its suppression would be a violation of due process, a right guaranteed by the
Constitution. Thus, the importance of finding out whether petitioner's loss of the
right to appeal was due to the PAO lawyer's negligence and not at all attributed
to petitioner.
PEOPLE VS. NADERA, JR., 324 SCRA 490
Mendoza, J.
The cavalier attitude of Atty. Manolo Brotonel of the PAO cannot
go unnoticed. It is discernible in [a] his refusal to cross-examine Oleby
Nadera (the complainant for RAPE); [b] the manner in which he
conducted Maricris Naderas cross-examination; and [c] his failure not
only to present evidence for the accused but to inform the accused of his
right to do so, if he desires. Only the faithful performance by counsel of
his duty towards his client can give meaning and substance to the
accuseds right to due process and to be presumed innocent until proven
otherwise. Hence, a lawyers duty, especially that of a defense counsel,
must not be taken lightly. It must be performed with all the zeal and vigor
at his command to protect and safeguard the accuseds fundamental rights.
It may be so that the defense counsel really found Olebys
testimony to be believable. Nonetheless, he had the bounden duty to
scrutinize private complainants testimony to ensure that the accuseds
constitutional right to confront and examine the witnesses against him
was not rendered for naught. It bears pointing out that in rape cases, it is
often the words of the complainant against the accused, the two being the
only persons present during the commission of the crime. This is so
because the complainants testimony cannot be accepted with precipitate
credulity without denying the accuseds constitutional right to be
presumed innocent. This is where cross-examination becomes essential to
test the credibility of the witnesses, expose falsehoods or half-truths,
431

432

[22]

Telan v. Court of Appeals, supra note 12, at 540-541; People of the Philippines v. Holgado, 85 Phil. 752,
756-757 (1950); Flores v. Judge Ruiz, 179 Phil. 351, 355 (1979); Delgado v. Court of Appeals, 229 Phil. 362, 366
(1986).

380
uncover the truth which rehearsed direct examination testimonies may
successfully suppress, and demonstrate inconsistencies in substantial
matters which create reasonable doubt as to the guilt of the accused and
thus give substance to the constitutional right of the accused to confront
the witnesses against him. For unless proven otherwise to be guilty beyond
reasonable doubt, the accused is presumed innocent.
(NOTE: For your Legal & Judicial Ethics)
Atty. Brotonel as counsel de oficio, had the duty to defend his
client and protect his rights, no matter how guilty or evil he perceives
accused-appellant to be. The performance of this duty was all the more
imperative because the life of the accused-appellant hangs in the balance.
His duty was no less because he was counsel de oficio.
The Decision of the RTC convicting the accused is SET ASIDE
and the case is remanded for further proceedings consistent with this
decision.
Read:
1. P vs. Dischoso, 96 SCRA 957
2. Read also:
PEOPLE VS. YAMBOT, G.R. NO. 120350, 343 SCRA 20, OCT. 30,
2000; PEOPLE VS. BANIHIT, G.R. NO. 132045, 339 SCRA 86, AUG.
25, 2000.
Right to be Heard by himself and counsel and to present evidence for his
defense.
In this case, the non-appearance of counsel for the accused on the
scheduled hearing was not construed as waiver by the accused of his right
to present evidence for his defense. Denial of due process can be
successfully invoked where no valid waiver of rights had been made as in
this case.
In another case, the accused-appellant validly waived his right to present
evidence. This is in consonance with the doctrine that everyone has a right
to waive the advantage of a law or rule made solely for the benefit and
protection of the individual in his private capacity, if it can be dispensed
with and relinquished without infringing on any public right, and without
detriment to the community at large.
6. The right to be present during trial
Read:
1. Aquino vs. Military Commission, 63 SCRA 546

381
2. P vs. Judge, 125 SCRA 269
3. Waiver of the defendant's presence in a
SCRA 430

criminal prosecution,77

The right to a speedy trial; not a case of; Requisites of double jeopardy;
DANTE TAN VS. PEOPLE, G.R. No. 173637, April 21, 2009
CHICO-NAZARIO, J.:
Before this Court is a Petition for Review on Certiorari filed under
Rule 45 of the Revised Rules of Court seeking the reversal and setting
aside of the Decision433[1] dated 22 February 2006 and Resolution434[2] dated
17 July 2006 issued by the Court of Appeals in CA-G.R. SP No. 83068
entitled, People of the Philippines v. Hon. Briccio C. Ygana, in his
capacity as Presiding Judge of Branch 153, Regional Trial Court, Pasig
City and Dante Tan.
The assailed Decision reinstated Criminal Case No. 119830, earlier
dismissed by the trial court due to an alleged violation of petitioner Dante
T. Tans right to speedy trial. The assailed Resolution denied his Motion
for Reconsideration and Motion to Inhibit.
The factual and procedural antecedents of the instant petition are as
follows:
On 19 December 2000, a Panel of Prosecutors of the Department
of Justice (DOJ), on behalf of the People of the Philippines (People), filed
three Informations against Dante T. Tan (petitioner) before the Regional
Trial Court (RTC) of Pasig City. The cases were docketed as Criminal
Cases No. 119830, No. 119831 and No. 119832, all entitled, People of
the Philippines v. Dante Tan.
Criminal Case No. 119830435[3] pertains to allegations that
petitioner employed manipulative devises in the purchase of Best World
Resources Corporation (BW) shares. On the other hand, Criminal Cases
No. 119831436[4] and No. 119832437[5] involve the alleged failure of
petitioner to file with the Securities and Exchange Commission (SEC) a
sworn statement of his beneficial ownership of BW shares.
In two other related cases, two Informations were filed against a
certain Jimmy Juan and Eduardo G. Lim for violation of the Revised
433

434

435[3]
436[4]
437[5]

[1]

Penned by Associate Justice Fernanda Lampas Peralta with Associate Justices Josefina
Guevara-Salonga and Sesinando E. Villon, concurring; rollo, pp. 90-100.
[2]
Id. at 102-112.
Id. at 228-230.
Id. at 231-232.
Id. at 233-235.

382
Securities Act involving BW shares of stock. These were docketed as
Criminal Cases No. 119828 and No. 119829.
On the same day, the DOJ, through Assistant Chief State
Prosecutor Nilo C. Mariano, filed a Motion for Consolidation praying that
Criminal Cases No. 119830, No. 119831 and No. 119832 be consolidated
together with Criminal Cases No. 119828 and No. 119829, which the trial
court granted.
On 21 December 2000, Criminal Cases No. 119830, No. 119831
and No. 119832 were raffled off to the Pasig RTC, Branch 153, presided
by Judge Briccio C. Ygana. Criminal Cases No. 119828 and No. 119829
also went to the same court.
Petitioner was arraigned on 16 January 2001, and pleaded not
guilty to the charges.438[6]
On 6 February 2001, the pre-trial was concluded, and a pre-trial
order set, among other things, the first date of trial on 27 February 2001. 439
[7]

Atty. Celia Sandejas of the Securities and Exchange Commission

(SEC), under the direct control and supervision of Public Prosecutor
Nestor Lazaro, entered her appearance for the People; Atty. Agnes
Maranan for petitioner Dante Tan; Atty. Sigfrid Fortun for Eduardo Lim,
Jr.; and Atty. Rudolf Brittanico for Jimmy Juan. State Prosecutors Susan
Dacanay and Edna Villanueva later on took over as lawyers for the People.
The People insists that during the pendency of the initial hearing
on 27 February 2001, the parties agreed that Criminal Cases No. 119831
and No. 119832 would be tried ahead of Criminal Case No. 119830, and
that petitioner would not interpose any objection to its manifestation, nor
would the trial court disapprove it.
Thereafter, the People presented evidence for Criminal Cases No.
119831 and No. 119832. On 18 September 2001, the prosecution
completed the presentation of its evidence and was ordered by the RTC to
file its formal offer of evidence within thirty days.
After being granted extensions to its filing of a formal offer of
evidence, the prosecution was able to file said formal offer for Criminal
Cases No. 119831 and No. 119832 on 25 November 2003.440[8]
On 2 December 2003, petitioner moved to dismiss Criminal Case
No. 119830 due to the Peoples alleged failure to prosecute. Claiming
violation of his right to speedy trial, petitioner faults the People for failing
438[6]
439[7]
440

Records, p. 194.
Id. at 253-259.
[8]
Rollo, pp. 247-253.

383
to prosecute the case for an unreasonable length of time and without
giving any excuse or justification for the delay. According to petitioner, he
was persistent in asserting his right to speedy trial, which he had allegedly
done on several instances. Finally, he claimed to have been substantially
prejudiced by this delay.
The prosecution opposed the Motion, insisting on its claim that the
parties had an earlier agreement to defer the trial of Criminal Case No.
119830 until after that of Criminal Cases No. 119831-119832, as the
presentation of evidence and prosecution in each of the five cases involved
were to be done separately. The presentation of evidence in Criminal
Cases No. 119831-119832, however, were done simultaneously, because
they involved similar offenses of non-disclosure of beneficial ownership
of stocks proscribed under Rule 36(a)-1441[9] in relation to Sections 32(a)1442[10] and 56443[11] of Batas Pambansa Bilang 178, otherwise known as the
Revised Securities Act. Criminal Case No. 119830 pertains to alleged
violation of Section 27 (b),444[12] in relation to Section 56 of said act.
On 22 December 2003, Judge Briccio C. Ygana of the Pasig RTC,
Branch 153, ruled that the delays which attended the proceedings of
petitioners case (Criminal Case No. 119830) were vexatious, capricious
441

442

443

444

[9]

Section 36. Directors, officers and principal stockholders.

(a) Every person who is directly or indirectly the beneficial owner of more than ten per centum of any
class of any equity security which is registered pursuant to this Act, or who is a director or an officer of
the issuer of such security, shall file, at the time of the registration of such security on a securities
exchange or by the effective date of a registration statement or within ten days after he becomes such a
beneficial owner, director, or officer, a statement with the Commission and, if such security is registered
on a securities exchange, also with the exchange, of the amount of all equity securities of such issuer of
which he is the beneficial owner, and within ten days after the close of each calendar month thereafter,
if there has been a change in such ownership during such month, shall file with the Commission, and if
such security is registered on a securities exchange, shall also file with the exchange, a statement
indicating his ownership at the close of the calendar month and such changes in his ownership as have
occurred during such calendar month.
[10]
Section 32. Reports. (a) (1) Any person who, after acquiring directly or indirectly the
beneficial ownership of any equity security of a class which is registered pursuant to this Act, is directly
or indirectly the beneficial owner of more than ten (10%) per centum of such class shall, within ten
days after such acquisition or such reasonable time as fixed by the Commission, submit to the issuer of
the security, to the stock exchanges where the security is traded, and to the Commission a sworn
statement x x x.
[11]
Penalties. Any person who violates any of the provisions of this Act, or the rules and
regulations promulgated by the Commission under authority thereof, or any person who, in a
registration statement filed under this Act, makes any untrue statement of a material fact of omits to
state any material fact required to be stated therein or necessary to make the statements therein not
misleading, shall, upon conviction, suffer a fine of not less than five thousand (P5,000.00) pesos nor
more than five hundred thousand (P500,000.00) pesos or imprisonment of not less than seven (7) years
nor more than twenty one (21) years, or both in the discretion of the court. If the offender is a
corporation, partnership or association or other juridical entity, the penalty shall be imposed upon the
officer or officers of the corporation, partnership, association or entity responsible for the violation, and
if such officer is an alien, he shall, in addition to the penalties prescribed, be deported without further
proceedings after service of sentence.
[12]
Section 27. Manipulative and deceptive devices. It shall be unlawful for any person, directly
or indirectly, by the use of any facility of any exchange
xxxx
(b) To use or employ, in connection with the purchase or sale of any security, any manipulative or
deceptive device or contrivance.

384
and oppressive, resulting in violation of petitioners right to speedy trial.
The RTC ordered445[13] the dismissal of Criminal Case No. 119830,
disposing as follows:
WHEREFORE, foregoing premises duly considered and finding
the motion to dismiss to be meritorious, the Court hereby orders Criminal
Case No. 119830 DISMISSED.
On motion for reconsideration, the prosecution insisted that the
parties agreed to hold separate trials of the BW cases, with petitioner
acquiescing to the prosecution of Criminal Cases No. 119831 and No.
119832 ahead of Criminal Case No. 119830. In an Order dated 20 January
2004, the RTC denied the Motion for Reconsideration for lack of merit.
The RTCs order of dismissal was elevated to the Court of Appeals
via a petition for certiorari, with the People contending that:
RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION IN
RULING THAT THE PEOPLE VIOLATED DANTE TANS RIGHT TO
SPEEDY TRIAL, ALBEIT, THE LATTER AND RESPONDENT JUDGE
HIMSELF HAVE CONFORMED TO THE DEFERMENT OF
CRIMINAL CASE NO. 119830 PENDING HEARING OF THE TWO
OTHER RELATED CASES.
Setting aside the trial courts order of dismissal, the Court of
Appeals granted the petition for certiorari in its Decision dated 22
February 2006. In resolving the petition, the appellate court reinstated
Criminal Case No. 119830 in this wise:
WHEREFORE, the petition is granted and the assailed Orders
dated December 22, 2003 and January 20, 2004 are set aside. Criminal
Case No. 119830 is reinstated and the trial court is ordered to conduct
further proceedings in said case immediately.446[14]
Petitioner moved for a reconsideration of the Decision and filed a
motion for inhibition of the Justices who decided the case.
On 17 July 2006, the Court of Appeals denied both motions.
Petitioner Dante Tan, henceforth, filed the instant petition for
review on certiorari, raising the following issues:
I.
WHETHER OR NOT THE ACTING SECRETARY OF JUSTICE MAY
VALIDLY EXECUTE THE CERTIFICATE OF NON-FORUM
SHOPPING ATTACHED TO THE PETITION FOR CERTIORARI
445
446[14]

[13]

Rollo, pp. 835-855.

Id. at 99-100.

385
FILED BY THE PEOPLE WITH THE COURT OF APPEALS EVEN
THOUGH THE CRIMINAL ACTION WAS INSTITUTED BY A
COMPLAINT SUBSCRIBED BY THE AUTHORIZED OFFICERS OF
THE SECURITIES AND EXCHANGE COMMISSION.
II.
WHETHER OR NOT THE PETITION FOR CERTIORARI VIOLATED
TANS RIGHT AGAINST DOUBLE JEOPARDY.
III.
WHETHER OR NOT CRIMINAL CASE NO. 119830 WAS
CORRECTLY DISMISSED BY THE TRIAL COURT ON THE
GROUND OF VIOLATION OF TANS RIGHT TO SPEEDY TRIAL.
IV.
WHETHER OR NOT THE TRIAL COURT COMMITTED GRAVE
ABUSE OF DISCRETION.
We first resolve the preliminary issues.
In an attempt at having the instant petition dismissed, petitioner
contends that the certificate of non-forum shopping attached to the
Peoples appeal before the Court of Appeals should have been signed by
the Chairman of the SEC as complainant in the cases instead of Acting
DOJ Secretary Merceditas N. Gutierrez.
Petitioners argument is futile. The Court of Appeals was correct in
sustaining the authority of Acting DOJ Secretary Merceditas Gutierrez to
sign the certificate of non-forum shopping of the petition for certiorari
before said court. It must be stressed that the certification against forum
shopping is required to be executed by the plaintiff. 447[15] Although the
complaint-affidavit was signed by the Prosecution and Enforcement
Department of the SEC, the petition before the Court of Appeals
originated from Criminal Case No. 119830, where the plaintiff or the party
instituting the case was the People of the Philippines. Section 2, Rule 110
of the Rules of Court leaves no room for doubt and establishes that
criminal cases are prosecuted in the name of the People of the Philippines,
the offended party in criminal cases. Moreover, pursuant to Section 3,
paragraph (2) of the Revised Administrative Code, the DOJ is the
executive arm of the government mandated to investigate the commission
of crimes, prosecute offenders and administer the probation and correction
system. It is the DOJ, through its prosecutors, which is authorized to
prosecute criminal cases on behalf of the People of the Philippines. 448[16]
447[15]
448[16]

Regalado, REMEDIAL LAW, p. 729.

Revised Administrative Code, Section 3(2).

386
Prosecutors control and direct the prosecution of criminal offenses,
including the conduct of preliminary investigation, subject to review by
the Secretary of Justice. Since it is the DOJ which is the government
agency tasked to prosecute criminal cases before the trial court, the DOJ is
best suited to attest whether a similar or related case has been filed or is
pending in another court of tribunal. Acting DOJ Secretary Merceditas N.
Gutierrez, being the head of the DOJ, therefore, had the authority to sign
the certificate of non-forum shopping for Criminal Case No. 119830,
which was filed on behalf of the People of the Philippines.
The preliminary issues having been resolved, the Court shall
proceed to discuss the main issues.
At the crux of the controversy is the issue of whether there was a
violation of petitioner Dante Tans right to speedy trial.
Petitioner Dante Tan assails the Decision and Resolution of the
Court of Appeals in CA-G.R. SP No. 83068. The appellate court
determined that he impliedly agreed that Case No. 119830 would not be
tried until after termination of Criminal Cases No. 119831-119832, which
finding was grounded entirely on speculations, surmises and conjectures.
Both parties concede that this issue is factual. It is a basic rule that
factual issues are beyond the province of this Court in a petition for
review, for it is not our function to review evidence all over again. 449[17]
Rule 45 of the Rules of Court provides that only questions of law may be
raised in this Court in a petition for review on certiorari.450[18] The reason
is that the Court is not a trier of facts. 451[19] However, the rule is subject to
several exceptions.452[20] Under these exceptions, the Court may delve into
and resolve factual issues, such as in cases where the findings of the trial
court and the Court of Appeals are absurd, contrary to the evidence on
record, impossible, capricious or arbitrary, or based on a misappreciation
of facts.
In this case, the Court is convinced that the findings of the Court of
Appeals on the substantial matters at hand, while conflicting with those of
the RTC, are adequately supported by the evidence on record. We,
therefore, find no reason to deviate from the jurisprudential holdings and
treat the instant case differently.
An accuseds right to have a speedy, impartial, and public trial is
guaranteed in criminal cases by Section 14(2) of Article III of the
Constitution. This right to a speedy trial may be defined as one free from
vexatious, capricious and oppressive delays, its salutary objective being
449

[17]

450

[18]

451

452

Centeno v. Viray, 440 Phil. 881, 887 (2002).

Busmente, Jr. v. National Labor Relations Commission, G.R. No. 73647, 8 April 1991, 195
SCRA 710, 713.
[19]
Tad-y v. People, G.R. No. 148862, 11 August 2005, 466 SCRA 474, 492; Romago Electric
Co., Inc. v. Court of Appeals, 388 Phil. 964, 975 (2000).
[20]
Palon v. Nino, 405 Phil. 670, 681 (2001).

387
to assure that an innocent person may be free from the anxiety and
expense of a court litigation or, if otherwise, of having his guilt
determined within the shortest possible time compatible with the
presentation and consideration of whatsoever legitimate defense he may
interpose . Intimating historical perspective on the evolution of the right
to speedy trial, we reiterate the old legal maxim, justice delayed is justice
denied. This oft-repeated adage requires the expeditious resolution of
disputes, much more so in criminal cases where an accused is
constitutionally guaranteed the right to a speedy trial .
Following the policies incorporated under the 1987 Constitution,
Republic Act No. 8493, otherwise known as The Speedy Trial Act of
1998, was enacted, with Section 6 of said act limiting the trial period to
180 days from the first day of trial . Aware of problems resulting in the
clogging of court dockets, the Court implemented the law by issuing
Supreme Court Circular No. 38-98, which has been incorporated in the
2000 Rules of Criminal Procedure, Section 2 of Rule 119 .
In Corpuz v. Sandiganbayan the Court had occasion to state
The right of the accused to a speedy trial and to a speedy
disposition of the case against him was designed to prevent the oppression
of the citizen by holding criminal prosecution suspended over him for an
indefinite time, and to prevent delays in the administration of justice by
mandating the courts to proceed with reasonable dispatch in the trial of
criminal cases. Such right to a speedy trial and a speedy disposition of a
case is violated only when the proceeding is attended by vexatious,
capricious and oppressive delays. The inquiry as to whether or not an
accused has been denied such right is not susceptible by precise
qualification. The concept of a speedy disposition is a relative term and
must necessarily be a flexible concept.
While justice is administered with dispatch, the essential ingredient
is orderly, expeditious and not mere speed. It cannot be definitely said
how long is too long in a system where justice is supposed to be swift, but
deliberate. It is consistent with delays and depends upon circumstances.
It secures rights to the accused, but it does not preclude the rights of public
justice. Also, it must be borne in mind that the rights given to the accused
by the Constitution and the Rules of Court are shields, not weapons;
hence, courts are to give meaning to that intent.
The Court emphasized in the same case that:
A balancing test of applying societal interests and the rights of the
accused necessarily compels the court to approach speedy trial cases on an
ad hoc basis.
In determining whether the accused has been deprived of his right
to a speedy disposition of the case and to a speedy trial, four factors must

388
be considered: (a) length of delay; (b) the reason for the delay; (c) the
defendants assertion of his right; and (d) prejudice to the defendant. x x
x.
Closely related to the length of delay is the reason or justification
of the State for such delay. Different weights should be assigned to
different reasons or justifications invoked by the State. x x x.453[26]
Exhaustively explained in Corpuz v. Sandiganbayan, an accuseds
right to speedy trial is deemed violated only when the proceeding is
attended by vexatious, capricious, and oppressive delays. In determining
whether petitioner was deprived of this right, the factors to consider and
balance are the following: (a) duration of the delay; (b) reason therefor; (c)
assertion of the right or failure to assert it; and (d) prejudice caused by
such delay.454[27]
From the initial hearing on 27 February 2001 until the time the
prosecution filed its formal offer of evidence for Criminal Cases No.
119831-119832 on 25 November 2003, both prosecution and defense
admit that no evidence was presented for Criminal Case No. 119830.
Hence, for a period of almost two years and eight months, the prosecution
did not present a single evidence for Criminal Case No. 119830.
The question we have to answer now is whether there was
vexatious, capricious, and oppressive delay. To this, we apply the fourfactor test previously mentioned.
We emphasize that in determining the right of an accused to speedy
trial, courts are required to do more than a mathematical computation of
the number of postponements of the scheduled hearings of the case. A
mere mathematical reckoning of the time involved is clearly
insufficient,455[28] and particular regard must be given to the facts and
circumstances peculiar to each case.456[29]
In Alvizo v. Sandiganbayan,457[30] the Court ruled that there was no
violation of the right to speedy trial and speedy disposition. The Court
took into account the reasons for the delay, i.e., the frequent amendments
of procedural laws by presidential decrees, the structural reorganizations
in existing prosecutorial agencies and the creation of new ones by
executive fiat, resulting in changes of personnel, preliminary jurisdiction,
and the functions and powers of prosecuting agencies. The Court also
considered the failure of the accused to assert such right, and the lack of
prejudice caused by the delay to the accused.
453[26]
454

455

456
457

Id. at 313-314.
[27]
Abardo v. Sandiganbayan, 407 Phil. 985, 999-1000 (2001); Dela Pena v. Sandiganbayan, 412
Phil. 921, 929 (2001).
[28]
Socrates v. Sandiganbayan, 324 Phil. 151, 170 (1996); Tai Lim v. Court of Appeals, 375 Phil.
971, 977 (1999).
[29]
Santiago v. Garchitorena, G.R. No. 109266, 2 December 1993, 228 SCRA 214, 221.
[30]
G.R. No. 101689, 17 March 1993, 220 SCRA 55.

389

In Defensor-Santiago v. Sandiganbayan,458[31] the complexity of the

issues and the failure of the accused to invoke her right to speedy
disposition at the appropriate time spelled defeat for her claim to the
constitutional guarantee.
In Cadalin v. Philippine Overseas Employment Administrations
Administrator,459[32] the Court, considering also the complexity of the cases
and the conduct of the parties lawyers, held that the right to speedy
disposition was not violated therein.
Petitioners objection to the prosecutions stand that he gave an
implied consent to the separate trial of Criminal Case No. 119830 is belied
by the records of the case. No objection was interposed by his defense
counsel when this matter was discussed during the initial hearing. 460[33]
Petitioners conformity thereto can be deduced from his non-objection at
the preliminary hearing when the prosecution manifested that the evidence
to be presented would be only for Criminal Cases No. 119831-119832.
His failure to object to the prosecutions manifestation that the cases be
tried separately is fatal to his case. The acts, mistakes and negligence of
counsel bind his client, except only when such mistakes would result in
serious injustice.461[34] In fact, petitioners acquiescence is evident from the
transcript of stenographic notes during the initial presentation of the
Peoples evidence in the five BW cases on 27 February 2001, herein
quoted below:
COURT: Atty. Sandejas, call your witness.
ATTY. SANDEJAS [SEC Prosecuting Lawyer]:
May
we
make
some
manifestation first, your Honor, before we continue presenting our
witness. First of all, this witness will only be testifying as to two (2) of the
charges: non-disclosure of beneficial ownership of Dante Tan x x x.
xxxx
COURT: (to Atty. Sandejas) Call your witness.
ATTY. SANDEJAS: Our witness is Mr. Wilfredo Baltazar of the Securities and
Exchange Commission, your Honor. We are presenting this witness for the
purpose of non-disclosure of beneficial ownership case
COURT: I would advise the counsel from the SEC to make it very clear your
purpose in presenting your first witness.

458

[31]

459

[32]

460
461

408 Phil. 767 (2001).

G.R. No. 104776, 5 December 1994, 238 SCRA 721.
[33]
TSN, 27 February 2001.
[34]
Producers Bank of the Philippines v. Court of Appeals, 430 Phil. 812, 823 (2002); People v.
Hernandez, 328 Phil. 1123, 1143 (1996).

390
ATTY. SANDEJAS: Yes, your Honor. Can I borrow the file?
COURT: Show it to counsel.
ATTY. SANDEJAS: Crim. Case Nos. 119831 and 119832, for Violation of RA
Rule 36(a)1, in relation to Sec. 32 (a)-1 of the Revised Securities Act
when he failed to disclose his beneficial ownership amounting to more
than 10% which requires disclosure of such fact.462[35]
During the same hearing, the People manifested in open court that
the parties had agreed to the separate trials of the BW Cases:
PROSECUTOR LAZARO:
May we be allowed to speak, your Honor?
Your Honor please, as we x x x understand, this is not a joint trial but a
separate trial x x x so as manifested by the SEC lawyer, the witness is
being presented insofar as 119831 and 119832 as against Dante Tan only x
x x.463[36]
The transcript of stenographic notes taken from the 3 April 2001
hearing further clarifies that only the two cases against Dante Tan were
being prosecuted:
ATTY. DE LA CRUZ [new counsel for accused Eduardo Lim, Jr.]:
Your Honor, please, may I request clarification from the prosecutors
regarding the purpose of the testimony of the witness in the stand. While
the Private Prosecutor stated the purpose of the testimony of the witness. .
PROSECUTOR LAZARO:
I was present during the last hearing. I was then going over the
transcript of this case, well, I believe the testimony x x x mainly [is] on
accused Dante Tan, your Honor. As a matter of fact, there was a
clarification made by the parties and counsels after the witness had
testified that the hearing in these cases is not a joint trial because it
involves separate charges, involving different documents, your Honor.
That is why the witness already testified only concerning Dante Tan. Per
the query made by Atty. Fortun, because at that time, Atty. Fortun was still
representing Mr. Lim, I believe, your Honor, then I understand that the
testimony of this witness cannot just be adopted insofar as the other
accused, your Honor.
462[35]

463[36]

TSN, 27 February 2001, pp. 3-7; CA rollo, pp. 87-91.

Id. at 71-74; id. at 155-156.

391
ATTY. MARANAN:
We confirm that, your Honor, since x x x particularly since this is
already cross, it is clear that the direct examination dealt exclusively with
Mr. Dante Tan.
PROS. LAZARO:
Mr. Dante Tan, involving the 2 (two) cases.464[37]
Moreover, although periods for trial have been stipulated, these
periods are not absolute. Where periods have been set, certain exclusions
are allowed by law.465[38] After all, this Court and the law recognize that it
is but a fact that judicial proceedings do not exist in a vacuum and must
contend with the realities of everyday life. In spite of the prescribed time
limits, jurisprudence continues to adopt the view that the fundamentally
recognized principle is that the concept of speedy trial is a relative term
and must necessarily be a flexible concept.466[39]
As to the assertion that delay in the presentation of evidence for
Criminal Case No. 119830 has prejudiced petitioner because the witnesses
for the defense may no longer be available at this time, suffice it to say
that the burden of proving his guilt rests upon the prosecution. 467[40]
Should the prosecution fail for any reason to present evidence sufficient to
show his guilt beyond reasonable doubt, petitioner will be acquitted. It is
safely entrenched in our jurisprudence that unless the prosecution
discharges its burden to prove the guilt of an accused beyond reasonable
doubt, the latter need not even offer evidence in his behalf.468[41]
In the cases involving petitioner, the length of delay, complexity of
the issues and his failure to invoke said right to speedy trial at the
appropriate time tolled the death knell on his claim to the constitutional
guarantee.469[42] More importantly, in failing to interpose a timely
objection to the prosecutions manifestation during the preliminary
hearings that the cases be tried separately, one after the other, petitioner
was deemed to have acquiesced and waived his objection thereto.
For the reasons above-stated, there is clearly insufficient ground to
conclude that the prosecution is guilty of violating petitioners right to
speedy trial. Grave abuse of discretion defies exact definition, but
generally refers to capricious or whimsical exercise of judgment as is
464

[37]

465

[38]

466
467
468

469

TSN, 3 April 2001, pp. 5-10; id. at 225-230.

Solar Team Entertainment, Inc. v. Judge How, 393 Phil. 172, 184 (2000).
[39]
Id.
[40]
Republic v. Sandiganbayan and Marcos, 461 Phil. 598, 615 (2003).
[41]
People v. Ganguso, G.R. No 115430, 23 November 1995, 250 SCRA 268, 274-275; People v.
Abellanosa, 332 Phil. 760, 788 (1996), citing People v. Baclayon, G.R. No. 110837, 29 March 1994,
231 SCRA 578, 584, citing People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA 349, 358359.
[42]
Santiago v. Garchitorena, supra note 29.

392
equivalent to lack of jurisdiction. Any capricious or whimsical exercise
of judgment in dismissing a criminal case is equivalent to lack of
jurisdiction. This is true in the instant case.
There is also no merit to petitioners claim that a reversal of the
RTCs Order dismissing Criminal Case No. 119830 is a violation of his
constitutional right against double jeopardy which dismissal was founded
on an alleged violation of his right to speedy trial.
The constitutional protection against double jeopardy shields one
from a second or later prosecution for the same offense. Article III,
Section 21 of the 1987 Constitution declares that no person shall be twice
put in jeopardy of punishment for the same offense, providing further that
if an act is punished by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for the same act.
Following the above constitutional provision, Section 7, Rule 117
of the Revised Rules of Court found it apt to stipulate:
SEC. 7. Former conviction or acquittal; double jeopardy. When
an accused has been convicted or acquitted, or the case against him
dismissed or otherwise terminated without his express consent by a court
of competent jurisdiction, upon a valid complaint or information or other
formal charge sufficient in form and substance to sustain a conviction and
after the accused had pleaded to the charge, the conviction or acquittal of
the accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit the same
or frustration thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or
information.
For double jeopardy to attach then, the following elements in the
first criminal case must be present:
(a) The complaint or information or other formal charge was sufficient in
form and substance to sustain a conviction;
(b) The court had jurisdiction;
(c) The accused had been arraigned and had pleaded; and
(d) He was convicted or acquitted or the case was dismissed or otherwise
terminated without the express consent of the accused.470[43]
Among the above-cited elements, we are concerned with the fourth
element, conviction or acquittal, or the case was dismissed or otherwise
470[43]

Condrada v. People, 446 Phil. 635, 641 (2003).

393
terminated without the express consent of the accused. This element is
crucial since, as a general rule, the dismissal of a criminal case resulting in
acquittal, made with the express consent of the accused or upon his own
motion, will not place the accused in double jeopardy.471[44] This rule,
however, admits of two exceptions, namely: insufficiency of evidence and
denial of the right to speedy trial. 472[45] While indeed petitioner was in fact
the one who filed the Motion to Dismiss Criminal Case No. 119830, the
dismissal thereof was due to an alleged violation of his right to speedy
trial, which would otherwise put him in double jeopardy should the same
charges be revived. Petitioners situation is different. Double jeopardy has
not attached, considering that the dismissal of Criminal Case No. 119830
on the ground of violation of his right to speedy trial was without basis
and issued with grave abuse of discretion amounting to lack or excess of
jurisdiction. Where the right of the accused to speedy trial has not been
violated, there is no reason to support the initial order of dismissal.
Following this Courts ruling in Almario v. Court of Appeals,473[46]
as petitioners right to speedy trial was not transgressed, this exception to
the fourth element of double jeopardy that the defendant was acquitted
or convicted, or the case was dismissed or otherwise terminated without
the express consent of the accused was not met. Where the dismissal of
the case was allegedly capricious, certiorari lies from such order of
dismissal and does not involve double jeopardy, as the petition challenges
not the correctness but the validity of the order of dismissal; such grave
abuse of discretion amounts to lack of jurisdiction, which prevents double
jeopardy from attaching.474[47]
As this Court ruled in People v. Tampal,475[48] reiterated in People v.
Leviste,476[49] where we overturned an order of dismissal by the trial court
predicated on the right to speedy trial
It is true that in an unbroken line of cases, we have held that
dismissal of cases on the ground of failure to prosecute is equivalent to an
acquittal that would bar further prosecution of the accused for the same
offense. It must be stressed, however, that these dismissals were
predicated on the clear right of the accused to speedy trial. These cases
are not applicable to the petition at bench considering that the right of the
private respondents to speedy trial has not been violated by the State. x x
x.
From the foregoing, it follows that petitioner cannot claim that
double jeopardy attached when said RTC order was reversed by the Court
471[44]

Id.

472

[45]

473[46]
474[47]
475[48]
476[49]

Id.; Philippine Savings Bank v. Bermoy, G.R. No. 151912, 26 September 2005, 471 SCRA 94,
106, citing People v. Bans, G.R. No. 104147, 8 December 1994, 239 SCRA 48, 55.
407 Phil. 279 (2002).
Regalado, REMEDIAL LAW COMPENDIUM (Vol. II, 2001), p. 503.
314 Phil. 35, 45 (1995).
325 Phil. 525, 537 (1996).

394
of Appeals. Double jeopardy does not apply to this case, considering that
there is no violation of petitioners right to speedy trial.
The old adage that justice delayed is justice denied has never been
more valid than in our jurisdiction, where it is not a rarity for a case to
drag in our courts for years and years and even decades. It was this
difficulty that inspired the constitutional requirement that the rules of court
to be promulgated by the Supreme Court shall provide for a simplified and
inexpensive procedure for the speedy trial and disposition of cases. 477[50]
Indeed, for justice to prevail, the scales must balance, for justice is not to
be dispensed for the accused alone.478[51]
Evidently, the task of the pillars of the criminal justice system is to
preserve our democratic society under the rule of law, ensuring that all
those who appear before or are brought to the bar of justice are afforded a
fair opportunity to present their side. As correctly observed by the Court
of Appeals, Criminal Case No. 119830 is just one of the many
controversial cases involving the BW shares scam where public interest is
undoubtedly at stake. The State, like any other litigant, is entitled to its
day in court, and to a reasonable opportunity to present its case. A hasty
dismissal, instead of unclogging dockets, has actually increased the
workload of the justice system and unwittingly prolonged the litigation. 479
[52]

Finally, we reiterate that the rights given to the accused by the

Constitution and the Rules of Court are shields, not weapons. Courts are
tasked to give meaning to that intent. There being no capricious,
vexatious, oppressive delay in the proceedings, and no postponements
unjustifiably sought, we concur in the conclusions reached by the Court of
Appeals.
Speedy disposition of cases before
administrative bodies; effect of undue
delay
CAPT. WILFREDO ROQUERO VS. THE
CHANCELLOR OF UP-MANILA, ET AL., G.R. No.
181851, March 9, 2010
PEREZ, J.:
Petitioner Wildredo G. Roquero is an employee of UP-Manila assigned at the
Philippine General Hospital (PGH) Security Division as Special Police Captain.
Private respondent Imelda O. Abutal is a Lady Guard of Ex-Bataan Security
477

[50]

478

[51]

479

Justice Isagani Cruz, PHILIPPINE POLITICAL LAW, p. 292.

Dimatulac v. Villon, 358 Phil. 328, 366 (1998); People v. Subida, G.R. No. 145945, 27 June
2006, 493 SCRA 125, 137.
[52]
People v. Leviste, supra note 49.

395
Agency who was applying for a position in the security force assigned at UPPGH.
The instant controversy arose from a complaint by private respondent
Abutal with then Chancellor of UP-Manila Perla D. Santos-Ocampo for Grave
Misconduct against petitioner Capt. Roquero. The formal charge filed on 1
October 1998 and docketed as ADM Case No. UPM-AC 97-007 reads as
follows:
After preliminary investigation duly conducted in
accordance with the Rules and Regulations on the
Discipline of UP Faculty and Employees, a prima
facie case has been found to exist against you for
GRAVE MISCONDUCT punishable under the
University Rules and Regulations on the Discipline
of UP Faculty and Employees in relation to the
Civil Service Law, committed as follows:
That you, Capt. Wilfredo Roquero of the
UP Manila Police Force, sometime in April
1996, while conducting an interview on MS.
IMELDA ABUTAL who was then applying
for the position of Lady Guard of Ex-Bataan
Security Agency to be assigned at UP-PGH,
proposed to her that if she agreed to be your
mistress, you would facilitate her application
and give her a permanent position; that
despite the fact the MS. ABUTAL rejected
your proposal, you still insisted on
demanding said sexual favor from her; that
you, therefore, are liable for GRAVE
MISCONDUCT
under
Section
22,
paragraph (c) of Rule XIV of the Omnibus
Rules Implementing Book V of E.O. 292 on
Civil Rules.
On 1 October 1998, the petitioner was placed under preventive suspension
for ninety (90) days by Chancellor Santos-Ocampo, the material portion of said
Order reads:
Considering the gravity of the offense charged and
pursuant to Section 19 of Rules and Regulations on
the Discipline of UP Faculty Members and
Employees and Section 26 and 27 Rule XIV of
Book V of Executive Order No. 292 and Omnibus
Rules, you are hereby preventively suspended for
ninety (90) days effective upon receipt hereof.

396
While on preventive suspension, you are hereby
required to appear before the Administrative
Disciplinary Tribunal (ADT) whenever your
presence is necessary.
Thereafter, the Administrative Disciplinary Tribunal (ADT) composed of
Atty. Zaldy B. Docena, Eden Perdido and Isabella Lara, was organized to hear the
instant case. Atty. Paul A. Flor, as University Prosecutor, represented the
prosecution. He was later on replaced by Atty. Asteria Felicen. Petitioner was
represented by Atty. Leo G. Lee of the Public Attorneys Office (PAO) who was
then replaced by Public Attorney Philger Inovejas.
The Prosecution presented its only witness, private respondent Abutal.
After the completion of the cross-examination on the prosecutions only witness,
the prosecution agreed to submit its Formal Offer of Evidence on or before 16
July 1999.
The prosecution, however, failed to submit its formal offer of evidence
within the period agreed upon.
Thereafter, on 10 August 1999, when the case was called, only petitioner
and his counsel appeared. Atty. Flor merely called by telephone and requested
Atty. Docena to reset the case to another date. Atty. Docena then ordered the
resetting of the hearing on the following dates: 11 August and 21 August 1999. On
11 August 1999, only petitioner and his counsel came. No representative from the
prosecution appeared before the ADT. Atty. Flor again called and asked for the
postponement of the hearing. By reason thereof, Atty. Docena issued an Order,
which reads as follows:
The continuation of the hearing of this case is
hereby set to September 29, 1999 at 2:00 p.m., with
the understanding that if and when the parties fail to
appear at said hearing date, this case shall be
deemed submitted for resolution based on the
evidences already obtaining in the record of the
case.
SO ORDERED.
11 August 1999.
On said date, the representative from the prosecution again failed to
appear.
On 22 October 1999, petitioner filed a Motion through counsel
praying that complainant (private respondent herein) be declared to have
waived her rights to formally offer her exhibits since complainant was not
able to file her Formal Offer within the given period of fifteen (15) days from
1 July 1999 or up to 16 July 1999.

397

The ADT was not able to act on the said Motion for almost five (5) years.
Due to the unreasonable delay, petitioner, on 19 May 2004 filed another Motion
asking for the dismissal of the administrative case against him. The Motion to
Dismiss was anchored on the following reasons: that the prosecution had not
formally offered its evidence; that the ADT had failed to act on the motion filed
on 22 October 1999; that the unfounded charges in the administrative complaint
were filed just to harass him; and that he is entitled to a just and speedy
disposition of the case.
On 26 May 2004, the prosecution, represented by Atty. Felicen in view of
the resignation of Atty. Flor in August 1999, filed its Comment/Opposition to the
Motion to Dismiss. The prosecution alleged that a Formal Offer of
Documentary Exhibits had been filed on 24 January 2004, of which a copy
thereof was received by Atty. Lee, petitioners counsel, on 30 January 2004, per
registry return receipt. However, petitioner has not filed his comment to the said
Formal Offer.
Furthermore, the prosecution explained in its Comment/Opposition that in
view of the resignation of Atty. Flor in August 1999 but who had been on leave by
mid-July 1999, the Formal Offer could not be prepared by another counsel until
all the transcript of stenographic notes have been furnished to the counsel that
replaced Atty. Flor. Meanwhile, the stenographer, Jamie Limbaga, had been in
and out of the hospital due to a serious illness, thus the delay in the filing of the
prosecutors Formal Offer of Documentary Exhibits.
On 8 June 2004, Atty. Docena issued the assailed Order denying
petitioners motion to dismiss, to wit:
Acting on respondents Motion to Dismiss,
as well as the University Prosecutors Comment
and/or Opposition to said Motion, and finding that
said Motion to Dismiss to be bereft of merit, the
same is hereby DENIED.
In view of the failure of the respondent to
file his comment on the Prosecutions Formal Offer
of Evidence, the Exhibits (A to G-1) of the
Prosecution are hereby ADMITTED for the purpose
for which the same have been offered.
The respondent is hereby directed to present
his evidence on June 22, 2004 at 10:30 in the
morning.
SO ORDERED.
A motion for reconsideration was filed by petitioner but the same was
denied in an Order dated 9 November 2004.

398
Petitioner Captain Wilfredo Roquero then filed with the Court of Appeals
a Petition for Certiorari under Rule 65, docketed as CA-G.R. SP No. 87776,
alleging therein that the ADT committed grave abuse of discretion when it denied
the motion to dismiss the administrative case filed against him.
In a Decision dated 22 March 2007, the Honorable Court of Appeals denied
the petition with prayer for TRO of Roquero reasoning that the ADT did not
commit grave abuse of discretion in issuing the assailed orders.
Hence, this Petition.
The core issue of this case is whether the failure of the ADT to resolve
Roqueros Motion (to declare complainant Imelda Abutal to have waived her
right to submit her Formal Offer of Exhibit) which he seasonably filed on 22
October 1999 and the assailed Order of the ADT dated 8 June 2004 admitting the
Formal Offer of Exhibit of complainant Imelda Abutal despite having filed after
almost five years violated the constitutional right of Roquero to a speedy
disposition of cases.
HELD:
Indeed, while Section 27 of the Uniform Rules on Administrative Cases in
Civil Service states that the failure to submit the formal offer of evidence
within the given period shall be considered as waiver thereof, the ADT in fact
allowed the prosecution to present its formal offer almost five (5) years later or on
24 January 2004. Starting on that date, petitioner was presented with the choice
to either present his evidence or to, as he did, file a motion to dismiss owing to the
extraordinary length of time that ADT failed to rule on his motion.
We cannot accept the finding of the Court of Appeals that there was no
grave abuse of discretion on the part of the ADT because a formal offer of
evidence was filed by the prosecution, a copy of which was received by
petitioners counsel. The admission by ADT on 8 June 2004 of the formal offer
of exhibits belatedly filed did not cure the 5-year delay in the resolution of
petitioners 1999 motion to deem as waived such formal offer of evidence.
Indeed, the delay of almost five (5) years cannot be justified.

The ADT admitted this explanation of the prosecutor hook, line and sinker
without asking why it took him almost five (5) years to make that explanation. If
the excuses were true, the prosecution could have easily manifested with the ADT
of its predicament right after Roquero filed his motion to declare the waiver of the
formal offer. It is evident too that the prosecution failed to explain why it took
them so long a time to find a replacement for the original prosecutor. And, the
stenographer who had been in and out of the hospital due to serious illness should
have been replaced sooner.

399
While it is true that administrative investigations should not be bound by
strict adherence to the technical rules of procedure and evidence applicable to
judicial proceedings, the same however should not violate the constitutional right
of respondents to a speedy disposition of cases.
Section 16, Article III of the 1987 Constitution provides:
Section 16. All person shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.
The constitutional right to a speedy disposition of cases is not limited to
the accused in criminal proceedings but extends to all parties in all cases,
including civil and administrative cases, and in all proceedings, including judicial
and quasi-judicial hearings. Hence, under the Constitution, any party to a case
may demand expeditious action by all officials who are tasked with the
administration of justice.
The right to a speedy disposition of a case, like the right to a speedy trial,
is deemed violated only when the proceedings are attended by vexatious,
capricious, and oppressive delays; or when unjustified postponements of the trial
are asked for and secured; or even without cause or justifiable motive, a long
period of time is allowed to elapse without the party having his case tried.
Equally applicable is the balancing test used to determine whether a defendant has
been denied his right to a speedy trial, or a speedy disposition of a case for that
matter, in which the conduct of both the prosecution and the defendant is
weighed, and such factors as the length of the delay, the reasons for such delay,
the assertion or failure to assert such right by the accused, and the prejudice
caused by the delay. The concept of a speedy disposition is a relative term and
must necessarily be a flexible concept.
Hence, the doctrinal rule is that in the determination of whether that right
has been violated, the factors that may be considered and balanced are as follows:
(1) the length of delay; (2) the reasons for the delay; (3) the assertion or failure to
assert such right by the accused; and (4) the prejudice caused by the delay.
Applying the doctrinal ruling vis-a-vis the factual milieu of this case, the
violation of the right to a speedy disposition of the case against petitioner is clear
for the following reasons: (1) the delay of almost five (5) years on the part of
ADT in resolving the motion of petitioner, which resolution petitioner reasonably
found necessary before he could present his defense; (2) the unreasonableness of
the delay; and (3) the timely assertions by petitioner of the right to an early
disposition which he did through a motion to dismiss. Over and above this, the
delay was prejudicial to petitioners cause as he was under preventive suspension
for ninety (90) days, and during the interregnum of almost five years, the trial of
the accusation against him remained stagnant at the prosecution stage.
The Constitutional guarantee against unreasonable delay in the disposition
of cases was intended to stem the tide of disenchantment among the people in the

400
administration of justice by our judicial and quasi-judicial tribunals. The
adjudication of cases must not only be done in an orderly manner that is in accord
with the established rules of procedure but must also be promptly decided to
better serve the ends of justice. Excessive delay in the disposition of cases
renders the rights of the people guaranteed by the Constitution and by various
legislations inutile.
WHEREFORE, the Petition is hereby GRANTED. The Administrative
Disciplinary Tribunal (ADT) of the University of the Philippines-Manila, Atty.
Zaldy B. Docena, Eden Perdido and Isabella Lara, in their capacities as Chairman
and Members of the ADT respectively, are hereby ORDERED to DISMISS the
administrative case against Capt. Wilfredo G. Roquero for violation of his
constitutional right to a speedy disposition of cases.
JAIME BERNAT VS. SANDIGANBAYAN, May 20, 2004
Right to speedy disposition of case.
Facts:
1. On August 14, 1991, the petitioner and several others were charged of
violation of Section 3 [e] of RA 3019, otherwise known as the Anti-graft
and Corrupt Practices Act;
2. On August 23, 1994 after the presentation of the parties evidence, the case
was deemed submitted for decision before the 2nd Division;
3. Thereafter, the case was unloaded to the newly created 5 th Division,
particularly to Justice Godofredo Legaspi and later re-assigned to Justice
Ma. Cristina Cortez-Estrada upon her assumption of office on November
3, 1998.
4. In the early part of 2002 while Justice Estrada was writing the decision of
the case, she found out that the November 26, 1993 transcript of
stenographic notes, which was the cross-examination of the petitioner, was
missing so she called the parties for a conference on April 19, 2002 to
discuss the matter.
5. Instead of attending the conference, petitioner filed a motion to dismiss the
case based on the alleged violation of his right to speedy trial. The Court
denied the same as well as the subsequent Motion for Reconsideration.
Hence, this Petition.
Issue:
Was there violation of the petitioners right to a speedy disposition
of his case when the same was not decided for almost 8 years from the
time it was deemed submitted for decision?
Held:
No. The right is violated only if the proceedings were attended by
vexatious, capricious and oppressive delays. The determination of whether

401
the delays are of said nature is relative and cannot be based on mere
mathematical reckoning of time. Particular regard to the facts and
circumstances of the case. As held in the case of DE LA PENA VS.
SANDIGANBAYAN, certain factors shall be considered and balanced to
determine if there is delay, as follows:
3.
4.
5.
6.

Length of the delay;

Reasons for the delay;
Assertion or failure to assert such right by the accused; and
Prejudiced caused by the delay.
There is no violation of the right to speedy disposition of his case because
petitioner failed to assert his constitutional right to a speedy disposition of
his case. During the 8-year period prior to April 19, 2002, petitioner did
not complain about the long delay in deciding his case.
a. Read Admin. Circular No. 4 of the Supreme
September 22, 1988
b. Department of Justice Circular No. 27, dated
1988
c. When shall this right starts
Read:
1. P vs. Orsal, 113 SCRA 226
d. To what proceedings is this right available
Read:
1. Caballero vs. Alfonso, 153 SCRA 153
e. In general
Read:
1. The right to speedy trial, 28 SCRA 601
2. Conde vs. Rivera, 59 Phil. 650
3. Ventura vs. People, Nov. 6,1976
4. Martin vs. Ver, July 25, 1983
5. Bermisa vs. CA, 92 SCRa
6. Luneta vs. Mil. Com., 102 SCRA 56
7. P vs. Baladjay, 113 SCRA 284
8. P vs. Araula, 111 SCRA 598
9. Regaspi vs. Castillo, 69 SCRA 160
10. Acevedo vs. Sarmiento, 36 SCRA 247
11. Nepumuceno vs. Secretary,108 SCRA 658
12. Tatad vs. SB, 159 SCRA 70

Court dated
September 16,

402
13. P vs. CFI of Rizal, 161 SCRA 249
14. P vs. Laya, 161 SCRA 327
15. Salcedovs. Mendoza, 88 SCRA 811
16. DUTERTE VS. SANDIGANBAYAN, 289 SCRA 721
18. ANGCHANGCO VS. OMBUDSMAN, 269 SCRA 301
SUMBANG VS. GEN. COURT MARTIAL, G.R. NO. 140188, 337
SCRA 227, AUG. 3, 2000; BLANCO VS. SANDIGANBAYAN, G.R.
NOS. 136757 58, 346 SCRA 108, NOV. 27, 2000; SOLAR TEAM
ENTERTAINMENT, INC. HON. HOW, G.R. NO. 140863, 338 SCRA
51, AUG. 22, 2000.
Speedy Disposition of Cases.
(i) The determination of whether an accused had been denied the right to
speedy trial depends on the surrounding circumstances of each case.
Although it took about 8 years before the trial of this case was resumed,
such delay did not amount to violation of petitioners right to speedy trial
considering that such delay was not by attributable to the prosecution.
Factors to consider in determining whether or not such right has
been violated:
1.
2.
3.

length of delay,
reasons for such delay, and
assertion or failure to assert such rights
by the accused and the prejudice caused by the delay.
(ii) Speedy Trial Act of 1998. The authority of the Secretary of Justice to
review resolutions of his subordinates even after an information has
already been filed in court does not present an irreconcilable conflict with
the 30-day period prescribed in Sec. 7 of the Speedy Trial Act of 1998.
8. The right to an impartial trial
Read:
1. P vs. Opida, June 13,1986
1-a. P vs. Tuazon, 159 SCRA 317
2. Olaguer vs. Chief of Staff, May 22, 1987
3. Mateo, Jr. vs. Villaluz,90 SCRA 16
4. P vs. Sendaydiego, 81 SCRA 120
5. Dimacuha vs. Concepcion, 117 SCRA 630
9. Right to a public trial
Read:
1. Garcia vs. Domingo, July 25,1973

403
2. P vs. Tampus, March 28,1980
10. The right to be informed of the nature and cause of
When the same is considered waived.

accusation.

THE PEOPLE OF THE PHILIPPINES VS. JERRY NAZARENO,

G.R. No. 167756, April 8, 2008
THE FACTS:
On March 17, 1999, appellant Jerry Nazareno was indicted for
violation of Article 266-A of the Revised Penal Code in Criminal Case No.
2638 for the alleged rape of BBB, his daughter. The information reads:
That sometime and between January 1992 up to December 06,
1998, in Barangay Codon, Municipality of San Andres, Province of
Catanduanes, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused by means of force, violence and
intimidation did then and there willfully, unlawfully, feloniously and
repeatedly made sexual intercourse with his daughter BBB at the age of 7
through 14 years old against her will.
The Information is worded thus:
That from sometime in January 1990 up to December 1998 in
Barangay Codon, municipality of San Andres, Catanduanes, and within
the jurisdiction of the Honorable Court, the said accused, being the father
of the complainant, did then and there willfully, feloniously and criminally
repeatedly had sexual intercourse with her daughter AAA, then five years
old up to the time when she was 15-years-old against her will.
CONTRARY TO LAW.480[18]
After trial , the accused was found guilty of qualified rape in both
cases. He appealed his conviction to the Court of Appeals in accordance
with the People vs. Mateo Doctrine but the Court of Appeals affirmed the
RTC Decision. Hence, this Petition before the Supreme Court.
I S S U E:
Is the constitutional right of the petitioner to be informed of the
nature and cause of accusation against him violated since the information
failed to specify with certainty the approximate date of the commission
of the offenses for rape which is a fatal defect.
H E L D:

480[18]

Records, Vol. II, p. 18.

404
The argument is specious. An information is intended to inform an
accused of the accusations against him in order that he could adequately
prepare his defense. Verily, an accused cannot be convicted of an offense
unless it is clearly charged in the complaint or information. Thus, to
ensure that the constitutional right of the accused to be informed of the
nature and cause of the accusation against him is not violated, the
information should state the name of the accused; the designation given to
the offense by the statute; a statement of the acts or omissions so
complained of as constituting the offense; the name of the offended party;
the approximate time and date of the commission of the offense; and the
place where the offense has been committed.481[27] Further, it must embody
the essential elements of the crime charged by setting forth the facts and
circumstances that have a bearing on the culpability and liability of the
accused, so that he can properly prepare for and undertake his defense. 482
[28]

However, it is not necessary for the information to allege the date

and time of the commission of the crime with exactitude unless time is an
essential ingredient of the offense.483[29] In People v. Bugayong,484[30] the
Court held that when the time given in the information is not the essence
of the offense, the time need not be proven as alleged; and that the
complaint will be sustained if the proof shows that the offense was
committed at any time within the period of the statute of limitations and
before the commencement of the action.
In People v. Gianan,485[31] the Court ruled that the time of the
commission of rape is not an element of the said crime as it is defined in
Article 335 of the Revised Penal Code. The gravamen of the crime is the
fact of carnal knowledge under any of the circumstances enumerated
therein, i.e.: (1) by using force or intimidation; (2) when the woman is
deprived of reason or otherwise unconscious; and (3) when the woman is
under twelve years of age or is demented. In accordance with Rule 110,
Section 11 of the 2000 Rules of Criminal Procedure, as long as it alleges
that the offense was committed at any time as near to the actual date at
which the offense was committed, an information is sufficient.
The doctrine was reiterated with greater firmness in People v.
Salalima486[32] and in People v. Lizada.487[33]

481[27]
482[28]

483[29]

People v. Quitlong, 354 Phil. 372, 388 (1998), citing Rules of Criminal Procedure (2000), Rule 110, Secs. 6 and 8.
Id.

People v. Santos, 390 Phil. 150, 161 (2000); Rules of Criminal Procedure (2000), Rule 110, Sec. 11 reads:
Sec. 11. Date of commission of the offense. It is not necessary to state in the complaint or information the
precise date the offense was committed except when it is a material ingredient of the offense. The offense may be
alleged to have been committed on a date as near as possible to the actual date of its commission.
484[30]
G.R. No. 126518, December 2, 1998, 299 SCRA 528.
485[31]
G.R. Nos. 135288-93, September 15, 2000, 340 SCRA 477.
486[32]
G.R. Nos. 137969-71, August 15, 2001, 363 SCRA 192.
487[33]
G.R. Nos. 143468-71, January 24, 2003, 396 SCRA 62.

405
In the case under review, the information in Criminal Case No.
2638 alleged that the rape of BBB transpired sometime and between
January 1992 up to December 6, 1998 in Barangay Codon, Municipality
of San Andres, Province of Catanduanes. In Criminal Case No. 2650, the
information averred that from sometime in January 1990 up to December
1998 in Barangay Codon, Municipality of San Andres, Province of
Catanduanes, AAA was raped by appellant. To the mind of the Court, the
recitals in the informations sufficiently comply with the constitutional
requirement that the accused be informed of the nature and cause of the
accusation against him.
In People v. Garcia,488[34] the Court upheld a conviction for ten
counts of rape based on an Information which alleged that the accused
committed multiple rapes from November 1990 up to July 21, 1994. In
People v. Espejon,489[35] the Court found the appellant liable for rape under
an information charging that he perpetrated the offense sometime in the
year 1982 and dates subsequent thereto and sometime in the year 1995
and subsequent thereto.
In the case under review, the information in Criminal Case No.
2638 alleged that the rape of BBB transpired sometime and between
January 1992 up to December 6, 1998 in Barangay Codon, Municipality
of San Andres, Province of Catanduanes. In Criminal Case No. 2650, the
information averred that from sometime in January 1990 up to December
1998 in Barangay Codon, Municipality of San Andres, Province of
Catanduanes, AAA was raped by appellant. To the mind of the Court, the
recitals in the informations sufficiently comply with the constitutional
requirement that the accused be informed of the nature and cause of the
accusation against him.
Indeed, this Court has ruled that allegations that rapes were
committed before and until October 15, 1994, 490[36] sometime in the
year 1991 and the days thereafter,491[37] and on or about and sometime in
the year 1988492[38] constitute sufficient compliance with Rule 110,
Section 11 of the 2000 Rules of Criminal Procedure.
More than that, the Court notes that the matter of particularity of
the dates in the information is being raised for the first time on appeal.
The rule is well-entrenched in this jurisdiction that objections as to matter
of form or substance in the information cannot be made for the first time
on appeal.493[39]
Appellant failed to raise the issue of defective
informations before the trial court. He could have moved to quash the
informations or at least for a bill of particulars. He did not. Clearly, he
slumbered on his rights and awakened too late.
488[34]

G.R. No. 120093, November 6, 1997, 281 SCRA 463.

G.R. No. 134767, February 20, 2002, 377 SCRA 412.
490[36]
People v. Bugayong, supra note 30.
491[37]
People v. Magbanua, G.R. No. 128888, December 3, 1999, 319 SCRA 719.
492[38]
People v. Santos, G.R. Nos. 131103 & 143472, June 29, 2000, 334 SCRA 655.
493[39]
People v. Razonable, 386 Phil. 771, 780 (2000).
489[35]

406

Too, appellant did not object to the presentation of the evidence for
the People contending that the offenses were committed sometime and
between January 1992 up to December 6, 1998 for Criminal Case No.
2632 and sometime in January 1990, up to December 1998 in Criminal
Case No. 2650. On the contrary, appellant actively participated in the
trial, offering denial and alibi as his defenses. Simply put, he cannot now
be heard to complain that he was unable to defend himself in view of the
vagueness of the recitals in the informations.
REASONS FOR THE CONSTITUTIONAL PROVISION ON THE
RIGHT OF THE ACCUSED TO BE INFORMED OF THE NATURE
AND CAUSE OF ACCUSATION
DE LA CRUZ VS. PEOPLE OF THE PHILIPPINES , G.R. No.
175929, December 16, 2008
It is true that in all criminal prosecutions, the accused shall be
informed of the nature and cause of the accusation against him. 494[88] The
Constitution uses the word shall, hence, the same is mandatory. A
violation of this right prevents the conviction of the accused with the
crime charged in the Information.
The constitutional guaranty has a three-fold purpose: First. To
furnish the accused with such a description of the charge against him as
will enable him to make his defense; and second, to avail himself of his
conviction or acquittal for protection against a further prosecution for the
same cause; and third, to inform the court of the facts alleged, so that it
may decide whether they are sufficient in law to support a conviction.495[89]
Read:
1. Sales vs. CA, 164 SCRA 717
1-a. P vs. Crisologo, 150 SCRA 653
1-b. P vs. Corral, 157 SCRA 678
1-c. P vs. Resavaga, 159 SCRA 426
1-d. Formilleza vs. SB, 159 SCRA
2. P vs. Labado, 98 SCRA 730
3. Ko Bu Lin vs. CA, 118 SCRA 573
4. P. vs. Cabale, 185 SCRA 140
5. People vs. Regala, April 27, 1982
11. The right to meet witnesses face to face or the
Read:
494
495

right of confrontation

407

1. P. vs. Talingdan, Nov. 9, 1990

1-a. P vs. Villaluz, October 20, 1983
2. P vs. Valero, 112 SCRA 661
3. P vs. Bundalian, 117 SCRA 718
4. Talino vs. Sandiganbayan, March 16,1987
5. P vs. Seneris, 99 SCRA 92
6. Ortigas, JR. vs. Lufthansa, 64 SCRA 610
7. Toledo vs. People, 20 SCRA 54
8. P vs. Bardaje, 99 SCRA 388
9. P vs. Santos, 139 SCRA 383
10. Soliman vs. Sandiganbayan, 145 SCRA 640
11. P vs. Lacuna, 87 SCRA 364
12. P vs. Clores, 100 SCRA 227
13. Carredo vs. People, 183 SCRA 273
14. Fulgado vs. CA, 182 SCRA 81
12. Trial in absentia
Read:
1. Borja vs. Mendoza, 77 SCRA 420
2. Nolasco vs. Enrile, 139 SCRA 502
3. P vs. Salas, 143 SCRA 163; Note the purpose
of this provision)
4. P vs. Judge Prieto, July 21,1978
5. Gimenez vs. Nazareno, 160 SCRA 1
6. Carredo vs. People, 183 SCRA 273
13. Right to secure witnesses and production of

evidence.

Read:
1. Cavili vs. Hon. Florendo, 154 SCRA 610
2. Fajardo vs. Garcia, 98 SCRA 514
CHAPTER XV - HABEAS CORPUS
Read:
1In the matter of the Petition for Habeas Corpus of
Ferdinand
Marcos, etc, GR No. 88079, May 18,
1989 and August & October,
1989.
1-a. Harvey vs. Santiago, supra
2. Cruz vs. Juan Ponce Enrile, April 15,1988
3. Abadilla vs. Fidel Ramos, December 1,1987
CHAPTER XVI - THE RIGHT

408
AGAINST SELF-INCRIMINATION
SOCIAL JUSTICE SOCIETY (SJS) VS. DANGEROUS
DRUGS BOARD, G.R. No. 157870, NOVEMBER 3,
2008;
ATTY. MANUEL J. LASERNA, JR. VS. DANGEROUS
DRUGS BOARD,
G.R. No. 158633, NOVEMBER 3,
2008
As far as pertinent, the challenged section reads as follows:
SEC. 36. Authorized Drug Testing.Authorized drug testing shall
be done by any government forensic laboratories or by any of the drug
testing laboratories accredited and monitored by the DOH to safeguard the
quality of the test results. x x x The drug testing shall employ, among
others, two (2) testing methods, the screening test which will determine
the positive result as well as the type of drug used and the confirmatory
test which will confirm a positive screening test. x x x The following
shall be subjected to undergo drug testing:
xxxx
(c) Students of secondary and tertiary schools.Students of
secondary and tertiary schools shall, pursuant to the related rules and
regulations as contained in the schools student handbook and with notice
to the parents, undergo a random drug testing x x x;
(d) Officers and employees of public and private offices.Officers
and employees of public and private offices, whether domestic or
overseas, shall be subjected to undergo a random drug test as contained in
the companys work rules and regulations, x x x for purposes of reducing
the risk in the workplace. Any officer or employee found positive for use
of dangerous drugs shall be dealt with administratively which shall be a
ground for suspension or termination, subject to the provisions of Article
282 of the Labor Code and pertinent provisions of the Civil Service Law;
xxxx
(f) All persons charged before the prosecutors office with a
criminal offense having an imposable penalty of imprisonment of not less
than six (6) years and one (1) day shall undergo a mandatory drug test;
G.R. No. 157870 (Social Justice Society v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner Social Justice Society
(SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB)
and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c),

409
(d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm.
For one, the provisions constitute undue delegation of legislative power when they give
unbridled discretion to schools and employers to determine the manner of drug testing.
For another, the provisions trench in the equal protection clause inasmuch as they can be
used to harass a student or an employee deemed undesirable. And for a third, a persons
constitutional right against unreasonable searches is also breached by said provisions.
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his
Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of
RA 9165 be struck down as unconstitutional for infringing on the constitutional right to
privacy, the right against unreasonable search and seizure, and the right against selfincrimination, and for being contrary to the due process and equal protection guarantees.
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary
and tertiary level students and public and private employees, while mandatory, is a
random and suspicionless arrangement. The objective is to stamp out illegal drug and
safeguard in the process the well being of [the] citizenry, particularly the youth, from the
harmful effects of dangerous drugs. This statutory purpose, per the policy-declaration
portion of the law, can be achieved via the pursuit by the state of an intensive and
unrelenting campaign against the trafficking and use of dangerous drugs x x x through an
integrated system of planning, implementation and enforcement of anti-drug abuse
policies, programs and projects.496[14] The primary legislative intent is not criminal
prosecution, as those found positive for illegal drug use as a result of this random testing
are not necessarily treated as criminals. They may even be exempt from criminal liability
should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA
9165 are clear on this point:
Sec. 54. Voluntary Submission of a Drug Dependent to
Confinement, Treatment and Rehabilitation.A drug dependent or any
person who violates Section 15 of this Act may, by himself/herself or
through his/her parent, [close relatives] x x x apply to the Board x x x for
treatment and rehabilitation of the drug dependency. Upon such
application, the Board shall bring forth the matter to the Court which shall
order that the applicant be examined for drug dependency. If the
examination x x x results in the certification that the applicant is a drug
dependent, he/she shall be ordered by the Court to undergo treatment and
rehabilitation in a Center designated by the Board x x x.
xxxx

496[14]

RA 9165, Sec. 2.

410
Sec. 55. Exemption from the Criminal Liability Under the
Voluntary Submission Program.A drug dependent under the voluntary
submission program, who is finally discharged from confinement, shall be
exempt from the criminal liability under Section 15 of this Act subject to
the following conditions:
xxxx
School children, the US Supreme Court noted, are most vulnerable to the
physical, psychological, and addictive effects of drugs. Maturing nervous systems of the
young are more critically impaired by intoxicants and are more inclined to drug
dependency. Their recovery is also at a depressingly low rate.497[15]
The right to privacy has been accorded recognition in this jurisdiction as a facet of
the right protected by the guarantee against unreasonable search and seizure 498[16] under
Sec. 2, Art. III499[17] of the Constitution. But while the right to privacy has long come into
its own, this case appears to be the first time that the validity of a state-decreed search or
intrusion through the medium of mandatory random drug testing among students and
employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these
proceedings is veritably one of first impression.
US jurisprudence is, however, a rich source of persuasive jurisprudence. With
respect to random drug testing among school children, we turn to the teachings of
Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent
School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of
Education),500[18] both fairly pertinent US Supreme Court-decided cases involving the
constitutionality of governmental search.
In Vernonia, school administrators in Vernonia, Oregon wanted to address the
drug menace in their respective institutions following the discovery of frequent drug use
by school athletes. After consultation with the parents, they required random urinalysis
drug testing for the schools athletes. James Acton, a high school student, was denied
participation in the football program after he refused to undertake the urinalysis drug
testing. Acton forthwith sued, claiming that the schools drug testing policy violated,
inter alia, the Fourth Amendment501[19] of the US Constitution.
The US Supreme Court, in fashioning a solution to the issues raised in Vernonia,
considered the following: (1) schools stand in loco parentis over their students; (2)
497

[15]

498

[16]

Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), 661.
Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169; citing Morfe v. Mutuc, No. L-20387,
January 31, 1968, 22 SCRA 424, 444-445.
499
[17]
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 person or things to be seized.
500
[18]
536 U.S. 822 (2002); cited in 2 Bernas, CONSTITUTIONAL RIGHTS AND SOCIAL DEMANDS 224227 (2004).
501
[19]
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, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

411
school children, while not shedding their constitutional rights at the school gate, have less
privacy rights; (3) athletes have less privacy rights than non-athletes since the former
observe communal undress before and after sports events; (4) by joining the sports
activity, the athletes voluntarily subjected themselves to a higher degree of school
supervision and regulation; (5) requiring urine samples does not invade a students
privacy since a student need not undress for this kind of drug testing; and (6) there is
need for the drug testing because of the dangerous effects of illegal drugs on the young.
The US Supreme Court held that the policy constituted reasonable search under the
Fourth502[20] and 14th Amendments and declared the random drug-testing policy
constitutional.
In Board of Education, the Board of Education of a school in Tecumseh,
Oklahoma required a drug test for high school students desiring to join extra-curricular
activities. Lindsay Earls, a member of the show choir, marching band, and academic
team declined to undergo a drug test and averred that the drug-testing policy made to
apply to non-athletes violated the Fourth and 14th Amendments. As Earls argued, unlike
athletes who routinely undergo physical examinations and undress before their peers in
locker rooms, non-athletes are entitled to more privacy.
The US Supreme Court, citing Vernonia, upheld the constitutionality of drug
testing even among non-athletes on the basis of the schools custodial responsibility and
authority. In so ruling, said court made no distinction between a non-athlete and an
athlete. It ratiocinated that schools and teachers act in place of the parents with a similar
interest and duty of safeguarding the health of the students. And in holding that the school
could implement its random drug-testing policy, the Court hinted that such a test was a
kind of search in which even a reasonable parent might need to engage.
In sum, what can reasonably be deduced from the above two cases and applied to
this jurisdiction are: (1) schools and their administrators stand in loco parentis with
respect to their students; (2) minor students have contextually fewer rights than an adult,
and are subject to the custody and supervision of their parents, guardians, and schools; (3)
schools, acting in loco parentis, have a duty to safeguard the health and well-being of
their students and may adopt such measures as may reasonably be necessary to discharge
such duty; and (4) schools have the right to impose conditions on applicants for
admission that are fair, just, and non-discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view and so
holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless
drug testing of students are constitutional. Indeed, it is within the prerogative of
educational institutions to require, as a condition for admission, compliance with
reasonable school rules and regulations and policies. To be sure, the right to enroll is not
absolute; it is subject to fair, reasonable, and equitable requirements.

502

[20]
The Fourth Amendment is almost similar to Sec. 2, Art. III of the Constitution, except that the latter
limited the determination of probable cause to a judge after an examination under oath of the complainant and his
witnesses. Hence, pronouncements of the US Federal Supreme Court and State Appellate Court may be considered
doctrinal in this jurisdiction, unless they are manifestly contrary to our Constitution. See Herrera, HANDBOOK ON
ARREST, SEARCH AND SEIZURE 8 (2003).

412
The Court can take judicial notice of the proliferation of prohibited drugs in the
country that threatens the well-being of the people,503[21] particularly the youth and school
children who usually end up as victims. Accordingly, and until a more effective method is
conceptualized and put in motion, a random drug testing of students in secondary and
tertiary schools is not only acceptable but may even be necessary if the safety and interest
of the student population, doubtless a legitimate concern of the government, are to be
promoted and protected. To borrow from Vernonia, [d]eterring drug use by our Nations
schoolchildren is as important as enhancing efficient enforcement of the Nations laws
against the importation of drugs; the necessity for the State to act is magnified by the
fact that the effects of a drug-infested school are visited not just upon the users, but upon
the entire student body and faculty.504[22] Needless to stress, the random testing scheme
provided under the law argues against the idea that the testing aims to incriminate
unsuspecting individual students.
Just as in the case of secondary and tertiary level students, the mandatory but
random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public
and private offices is justifiable, albeit not exactly for the same reason. The Court notes in
this regard that petitioner SJS, other than saying that subjecting almost everybody to
drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the
individual right to privacy,505[23] has failed to show how the mandatory, random, and
suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to
privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2
of the Constitution.506[24] Petitioner Lasernas lament is just as simplistic, sweeping, and
gratuitous and does not merit serious consideration. Consider what he wrote without
elaboration:
The US Supreme Court and US Circuit Courts of Appeals have
made various rulings on the constitutionality of mandatory drug tests in
the school and the workplaces. The US courts have been consistent in their
rulings that the mandatory drug tests violate a citizens constitutional right
to privacy and right against unreasonable search and seizure. They are
quoted extensively hereinbelow.507[25]
The essence of privacy is the right to be left alone.508[26] In context, the right to
privacy means the right to be free from unwarranted exploitation of ones person or from
intrusion into ones private activities in such a way as to cause humiliation to a persons
ordinary sensibilities. 509[27] And while there has been general agreement as to the basic
function of the guarantee against unwarranted search, translation of the abstract
503

[21]

504

[22]

Tolentino v. Alconcel, No. L-63400, March 18, 1983, 121 SCRA 92, 95-96.
Rollo (G.R. No. 158633), p. 204, respondents Consolidated Memorandum.
505
[23]
Rollo (G.R. No. 157870), p. 10.
506
[24]
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.
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 person or things to be seized.
507
[25]
Rollo (G.R. No. 158633), p. 9.
508[26]
Ople, supra note 16, at 153; citing Cooley on Torts, Sec. 135, Vol. 1, 4th ed., [1932].
509
[27]
62 Am. Jur. 2d, Privacy, Sec. 1.

413
prohibition against unreasonable searches and seizures into workable broad guidelines
for the decision of particular cases is a difficult task, to borrow from C. Camara v.
Municipal Court.510[28] Authorities are agreed though that the right to privacy yields to
certain paramount rights of the public and defers to the states exercise of police power. 511
[29]

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as
has been held, reasonableness is the touchstone of the validity of a government search
or intrusion.512[30] And whether a search at issue hews to the reasonableness standard is
judged by the balancing of the government-mandated intrusion on the individuals
privacy interest against the promotion of some compelling state interest. 513[31] In the
criminal context, reasonableness requires showing of probable cause to be personally
determined by a judge. Given that the drug-testing policy for employeesand students
for that matterunder RA 9165 is in the nature of administrative search needing what
was referred to in Vernonia as swift and informal disciplinary procedures, the probablecause standard is not required or even practicable. Be that as it may, the review should
focus on the reasonableness of the challenged administrative search in question.
The first factor to consider in the matter of reasonableness is the nature of the
privacy interest upon which the drug testing, which effects a search within the meaning of
Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as
the backdrop for the analysis of the privacy expectation of the employees and the
reasonableness of drug testing requirement. The employees privacy interest in an office
is to a large extent circumscribed by the companys work policies, the collective
bargaining agreement, if any, entered into by management and the bargaining unit, and
the inherent right of the employer to maintain discipline and efficiency in the workplace.
Their privacy expectation in a regulated office environment is, in fine, reduced; and a
degree of impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of the intrusion authorized by
the challenged law. Reduced to a question form, is the scope of the search or intrusion
clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a
search narrowly drawn or narrowly focused?514[32]
The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and
its implementing rules and regulations (IRR), as couched, contain provisions specifically
directed towards preventing a situation that would unduly embarrass the employees or
place them under a humiliating experience. While every officer and employee in a private
establishment is under the law deemed forewarned that he or she may be a possible
subject of a drug test, nobody is really singled out in advance for drug testing. The goal is
to discourage drug use by not telling in advance anyone when and who is to be tested.
And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a
narrowing ingredient by providing that the employees concerned shall be subjected to

510

[28]

511

[29]

513
514

387 U.S. 523; cited in 2 Bernas, supra note 18, at 232.

62 Am. Jur. 2d, Privacy, Sec. 17.
512[30]
Vernonia & Board of Education, supra notes 15 & 18.
[31]
Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 619 (1989); cited in Vernonia, supra.
[32]
Supra note 16, at 166 & 169.

414
random drug test as contained in the companys work rules and regulations x x x for
purposes of reducing the risk in the work place.
For another, the random drug testing shall be undertaken under conditions
calculated to protect as much as possible the employees privacy and dignity. As to the
mechanics of the test, the law specifies that the procedure shall employ two testing
methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as
possible the trustworthiness of the results. But the more important consideration lies in
the fact that the test shall be conducted by trained professionals in access-controlled
laboratories monitored by the Department of Health (DOH) to safeguard against results
tampering and to ensure an accurate chain of custody.515[33] In addition, the IRR issued by
the DOH provides that access to the drug results shall be on the need to know basis; 516
[34]
that the drug test result and the records shall be [kept] confidential subject to the
usual accepted practices to protect the confidentiality of the test results. 517[35] Notably,
RA 9165 does not oblige the employer concerned to report to the prosecuting agencies
any information or evidence relating to the violation of the Comprehensive Dangerous
Drugs Act received as a result of the operation of the drug testing. All told, therefore, the
intrusion into the employees privacy, under RA 9165, is accompanied by proper
safeguards, particularly against embarrassing leakages of test results, and is relatively
minimal.
To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the
country and thus protect the well-being of the citizens, especially the youth, from the
deleterious effects of dangerous drugs. The law intends to achieve this through the
medium, among others, of promoting and resolutely pursuing a national drug abuse
policy in the workplace via a mandatory random drug test. 518[36] To the Court, the need for
drug testing to at least minimize illegal drug use is substantial enough to override the
individuals privacy interest under the premises. The Court can consider that the illegal
drug menace cuts across gender, age group, and social- economic lines. And it may not be
amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready
market, would be an investors dream were it not for the illegal and immoral components
of any of such activities. The drug problem has hardly abated since the martial law
public execution of a notorious drug trafficker. The state can no longer assume a laid
back stance with respect to this modern-day scourge. Drug enforcement agencies
perceive a mandatory random drug test to be an effective way of preventing and deterring
drug use among employees in private offices, the threat of detection by random testing
being higher than other modes. The Court holds that the chosen method is a reasonable
and enough means to lick the problem.
Taking into account the foregoing factors, i.e., the reduced expectation of privacy
on the part of the employees, the compelling state concern likely to be met by the search,
and the well-defined limits set forth in the law to properly guide authorities in the
515

[33]

Under Sec. 7 [3] of the DOH IRR Governing Licensing and Accreditation of Drug Laboratories, a
laboratory is required to use documented chain of custody procedures to maintain control and custody of specimens.
516
[34]
DOH IRR Governing Licensing and Accreditation of Drug Laboratories, Sec. 7 [10.3] provides that the
original copy of the test results form shall be given to the client/donor, copy furnished the DOH and the requesting
agency.
517
[35]
Id., Sec. 7 [10.4].
518
[36]
Secs. 47 and 48 of RA 9165 charge the Department of Labor and Employment with the duty to develop
and promote a national drug prevention program and the necessary guidelines in the work place, which shall include a
mandatory drafting and adoption of policies to achieve a drug-free workplace.

415
conduct of the random testing, we hold that the challenged drug test requirement is, under
the limited context of the case, reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials and employees
also labor under reasonable supervision and restrictions imposed by the Civil Service law
and other laws on public officers, all enacted to promote a high standard of ethics in the
public service.519[37] And if RA 9165 passes the norm of reasonableness for private
employees, the more reason that it should pass the test for civil servants, who, by
constitutional command, are required to be accountable at all times to the people and to
serve them with utmost responsibility and efficiency.520[38]
Petitioner SJS next posture that Sec. 36 of RA 9165 is objectionable on the
ground of undue delegation of power hardly commends itself for concurrence. Contrary
to its position, the provision in question is not so extensively drawn as to give unbridled
options to schools and employers to determine the manner of drug testing. Sec. 36
expressly provides how drug testing for students of secondary and tertiary schools and
officers/employees of public/private offices should be conducted. It enumerates the
persons who shall undergo drug testing. In the case of students, the testing shall be in
accordance with the school rules as contained in the student handbook and with notice to
parents. On the part of officers/employees, the testing shall take into account the
companys work rules. In either case, the random procedure shall be observed, meaning
that the persons to be subjected to drug test shall be picked by chance or in an unplanned
way. And in all cases, safeguards against misusing and compromising the confidentiality
of the test results are established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in
consultation with the DOH, Department of the Interior and Local Government,
Department of Education, and Department of Labor and Employment, among other
agencies, the IRR necessary to enforce the law. In net effect then, the participation of
schools and offices in the drug testing scheme shall always be subject to the IRR of RA
9165. It is, therefore, incorrect to say that schools and employers have unchecked
discretion to determine how often, under what conditions, and where the drug tests shall
be conducted.
The validity of delegating legislative power is now a quiet area in the
constitutional landscape.521[39] In the face of the increasing complexity of the task of the
government and the increasing inability of the legislature to cope directly with the many
problems demanding its attention, resort to delegation of power, or entrusting to
administrative agencies the power of subordinate legislation, has become imperative, as
here.
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)

519[37]
CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICERS AND
EMPLOYEES, Sec. 2.
520
[38]
CONSTITUTION, Art. XI, Sec. 1.
521
[39]
Tatad, supra note 6, at 351.

416
Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no
valid justification for mandatory drug testing for persons accused of crimes. In the case of
students, the constitutional viability of the mandatory, random, and suspicionless drug
testing for students emanates primarily from the waiver by the students of their right to
privacy when they seek entry to the school, and from their voluntarily submitting their
persons to the parental authority of school authorities. In the case of private and public
employees, the constitutional soundness of the mandatory, random, and suspicionless
drug testing proceeds from the reasonableness of the drug test policy and requirement.
We find the situation entirely different in the case of persons charged before the
public prosecutors office with criminal offenses punishable with six (6) years and one
(1) day imprisonment. The operative concepts in the mandatory drug testing are
randomness and suspicionless. In the case of persons charged with a crime before
the prosecutors office, a mandatory drug testing can never be random or suspicionless.
The ideas of randomness and being suspicionless are antithetical to their being made
defendants in a criminal complaint. They are not randomly picked; neither are they
beyond suspicion. When persons suspected of committing a crime are charged, they are
singled out and are impleaded against their will. The persons thus charged, by the bare
fact of being haled before the prosecutors office and peaceably submitting themselves to
drug testing, if that be the case, do not necessarily consent to the procedure, let alone
waive their right to privacy.522[40] To impose mandatory drug testing on the accused is a
blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the
stated objectives of RA 9165. Drug testing in this case would violate a persons right to
privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused
persons are veritably forced to incriminate themselves.
1. Self-incrimination, 24 SCRA 692
2. Read
1. Chavez vs. CA, 24 SCRA 663
2. Galman vs. Pamaran, 138 SCRA 294, read
concurring and dissenting opinions
3. Villaflor vs. Summers, 41 Phil. 62
4. Beltran vs. Samson, 50 Phil. 570
5. Bagadiong vs. Gonzales, 94 SCRA 906
6. BASECO vs. PCGG, supra
7. Isabela Sugar vs. Macadaeg, 98 Phil. 995
8. Fernando vs. Maglanoc, 95 Phil. 431
9. US vs. Tang Teng, 23 Phil. 145
10. P vs. Otadora, 86 Phil. 244
11. P vs. Olvis, 154 SCRA 513
12. P vs. Boholst-Amadore, 152 SCRA 263
13. P vs. Rosas, 148 SCRA 464
14. P vs. Ruallo, 152 SCRA 635
15. P vs. Policarpio, 158 SCRA 85( Compare with
Boholst cases)
522

ed.).

[40]

including the

the Rosas &

Leona Pasion Viuda de Garcia v. Locsin, 65 Phil. 689, 695 (1938); citing Cooley, CONST. LIM. 630 (8th

417
16. P vs. Lumayok, 139 SCRA 1
17. Cabal vs. Kapunan, Jr. December 29, 1962
PEOPLE VS. BANIHIT, G.R. NO. 132045, 339 SCRA 86, AUG. 25,
2000; PEOPLE VS. CONTINENTE, G.R. NOS. 100801- 02, 339
SCRA 1, AUG. 25, 2000.
The essence of this right against self-incrimination is testimonial
compulsion or the giving of evidence against oneself through a testimonial
act. Hence, an accused may be compelled to submit to physical
examination and have a substance taken from his body for medical
determination as to whether he was suffering from a disease that was
contracted by his victim without violating this right.
CHAPTER XVII - THE RIGHT AGAINST
INVOLUNTARY SERVITUDE
1. Read:
1. Aclaracion vs. Gatmaitan, 64 SCRA 131
2. Caunca vs. Salazar, supra
CHAPTER XVIII - RIGHT AGAINST
CRUEL AND UNUSUAL
PUNISHMENT
a. Is the Death Penalty already abolished by the

1987 Constitution?

Read:
1. P vs. Gavarra, 155 SCRa 327
2. P vs. Masangkay, 155 SCRA 113
3. P vs. Atencio, 156 SCRA 242
4. P vs. Intino, September 26, 1988
5. People vs. Munoz, 170 SCRA 107
b. Is death as a penalty a cruel or unuasual

punishment?

No. Death through lethal injection is the most humane way of

implementing the death Penalty (Leo Echegaray vs. Secretary of Justice)
Read:
1. P vs. Estoista, 93 Phil. 647
2. P vs. Villanueva,, 128 SCRA 488
3. Veniegas vs. People, 115 SCRA 79
4. P vs. Camano, 115 SCRA 688
2. On the death penalty whether it was abolished or not

418
Read:
a. P vs. Idnay, 164 SCRA 358
CHAPTER XIX - RIGHT AGAINST
NON-IMPRISONMENT FOR DEBT
1. Read:
1. Lozano vs. Martinez, 146 SCRA 323
2. Ajeno vs. Incierto, 71 SCRA 166
CHAPTER XX - THE RIGHT
AGAINST DOUBLE JEOPARDY
1. Requisites present before this right can be invoked
PEOPLE VS. ALMARIO, 355 SCRA 1
There is double jeopardy when there is:
[1] valid indictment;
[2] before a competent court;
[3] after arraignment;
[4] when a valid plea has been entered; and
[5] when the defendant was convicted or acquitted, or the case was
dismissed or otherwise terminated without the express consent of the
accused.
If the dismissal is through the instance of the accused or with his
express consent, there is no double jeopardy and the case could be
reinstated. However, this rule admits of two (2) exceptions:
1) the motion to dismiss is based on insufficiency of evidence; and
2) the motion to dismiss is based on the denial of the accuseds right to
speedy trial.
This is so because the dismissal is actually an acquittal and therefore,
all the requisites of double jeopardy are complete.
JEFFREY RESO DAYAP vs. PRETZY-LOU SENDIONG,
GENESA SENDIONG, ELVIE
SY and DEXIE DURAN,
G.R. No. 177960, January 29, 2009

419
The case had its origins in the filing of an Information 523[4] on 29
December 2004 by the Provincial Prosecutors Office, Sibulan, Negros
Oriental, charging herein petitioner Jeffrey Reso Dayap with the crime of
Reckless Imprudence resulting to Homicide, Less Serious Physical
Injuries, and Damage to Property. The pertinent portion of the information
reads:
That at about 11:55 oclock in the evening of 28 December 2004 at
Brgy. Maslog, Sibulan, Negros Oriental, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then
and there, willfully, unlawfully and feloniously drive in a reckless and
imprudent manner a 10-wheeler cargo truck with plate number ULP-955,
color blue, fully loaded with sacks of coconut shell, registered in the name
of Ruben Villabeto of Sta. Agueda Pamplona, Negros Oriental, thereby
hitting an automobile, a Colt Galant with plate number NLD-379 driven
by Lou Gene R. Sendiong who was with two female passengers, namely:
Dexie Duran and Elvie Sy, thus causing the instantaneous death of said
Lou Gene R. Sendiong, less serious physical injuries on the bodies of
Dexie Duran and Elvie Sy and extensive damage to the above-mentioned
Colt Galant which is registered in the name of Cristina P. Weyer of 115 Dr.
V. Locsin St., Dumaguete City, to the damage of the heirs of the same Lou
Gene R. Sendiong and the other two offended parties above-mentioned.
An act defined and penalized by Article 365 of the Revised Penal
Code.
On 10 January 2005, before the Municipal Trial Court (MTC) of
Sibulan, Negros Oriental, petitioner was arraigned and he pleaded not
guilty to the charge.524[5]
On 17 January 2005, respondents Pretzy-Lou P. Sendiong, Genesa
Sendiong and Dexie Duran filed a motion for leave of court to file an
amended information.525[6]
They sought to add the allegation of
abandonment of the victims by petitioner, thus: The driver of the 10wheeler cargo truck abandoned the victims, at a time when said [LouGene] R. Sendiong was still alive inside the car; he was only extracted
from the car by the by-standers.526[7]
On 21 January 2005, however, the Provincial Prosecutor filed an
Omnibus Motion praying that the motion to amend the information be

523
[4]

Records, p. 32.

[5]

Rollo, p. 44; See Order dated 10 January 2005.

[6]

Records, pp. 34-36.

[7]

Id. at 37.

524

525

526

420
considered withdrawn.527[8] On 21 January 2003, the MTC granted the
withdrawal and the motion to amend was considered withdrawn.528[9]
Pre-trial and trial of the case proceeded. Respondents testified for
the prosecution. After the prosecution had rested its case, petitioner
sought leave to file a demurrer to evidence which was granted. Petitioner
filed his Demurrer to Evidence529[10] dated 15 April 2005 grounded on the
prosecutions failure to prove beyond reasonable doubt that he is
criminally liable for reckless imprudence, to which respondents filed a
Comment530[11] dated 25 April 2005.
In the Order531[12] dated 16 May 2005, the MTC granted the
demurrer and acquitted petitioner of the crime of reckless imprudence.
The MTC found that the evidence presented by respondents failed to
establish the allegations in the Information. Pertinent portions of the order
state:
An examination of the allegations in the information and
comparing the same with the evidence presented by the prosecution would
reveal that the evidence presented has not established said allegations.
The facts and circumstances constituting the allegations charged have not
been proven. It is elementary in the rules of evidence that a party must
prove his own affirmative allegations.
xxxx
Nowhere in the evidence of the prosecution can this Court find that
it was the accused who committed the crime as charged. Its witnesses
have never identified the accused as the one who has committed the crime.
The prosecution never bothered to establish if indeed it was the accused
who committed the crime or asked questions which would have proved the
elements of the crime. The prosecution did not even establish if indeed it
was the accused who was driving the truck at the time of the incident. The
Court simply cannot find any evidence which would prove that a crime
has been committed and that the accused is the person responsible for it.
There was no evidence on the allegation of the death of Lou Gene R.
Sendiong as there was no death certificate that was offered in evidence.
The alleged less serious physical injuries on the bodies of Dexie Duran
and Elvie Sy were not also proven as no medical certificate was presented
to state the same nor was a doctor presented to establish such injuries. The
alleged damage to the [C]olt [G]alant was also not established in any
527
[8]

Id. at 41.

[9]

Rollo, p. 55.

528

529
[10]

Records, pp. 80-92.

530
[11]

Id. at 93-94.

531
[12]

Rollo, pp. 72-74.

421
manner as no witness ever testified on this aspect and no documentary
evidence was also presented to state the damage. The prosecution
therefore failed to establish if indeed it was the accused who was
responsible for the death of Lou Gene R. Sendiong and the injuries to
Dexie Duran and Elvie Sy, including the damage to the Colt Galant. The
mother of the victim testified only on the expenses she incurred and the
shock she and her family have suffered as a result of the incident. But sad
to say, she could not also pinpoint if it was the accused who committed the
crime and be held responsible for it. This Court could only say that the
prosecution has practically bungled this case from its inception.
xxxx
The defense furthermore argued that on the contrary, the
prosecutions [evidence] conclusively show that the swerving of vehicle 1
[the Colt Galant] to the lane of vehicle 2 [the cargo truck] is the proximate
cause of the accident. The court again is inclined to agree with this
argument of the defense. It has looked carefully into the sketch of the
accident as indicated in the police blotter and can only conclude that the
logical explanation of the accident is that vehicle 1 swerved into the lane
of vehicle 2, thus hitting the latters inner fender and tires. Exhibit 7
which is a picture of vehicle 2 shows the extent of its damage which was
the effect of vehicle 1s ramming into the rear left portion of vehicle 2
causing the differential guide of vehicle 2 to be cut, its tires busted and
pulled out together with their axle. The cutting of the differential guide
cause[d] the entire housing connecting the tires to the truck body to
collapse, thus causing vehicle 2 to tilt to its left side and swerve towards
the lane of vehicle 1. It was this accident that caused the swerving, not of
[sic] any negligent act of the accused.
xxxx
Every criminal conviction requires of the prosecution to prove two
thingsthe fact of the crime, i.e., the presence of all the elements of the
crime for which the accused stands charged, and the fact that the accused
is the perpetrator of the crime. Sad to say, the prosecution has miserably
failed to prove these two things. When the prosecution fails to discharge
its burden of establishing the guilt of the accused, an accused need not
even offer evidence in his behalf.
xxxx
WHEREFORE, premises considered, the demurrer is granted and
the accused JEFFREY RESO DAYAP is hereby acquitted for
insufficiency of evidence. The bail bond posted for his temporary liberty
is also hereby cancelled and ordered released to the accused or his duly
authorized representative.

422
SO ORDERED.532[13]
Respondents thereafter filed a petition for certiorari under Rule
65,
alleging that the MTCs dismissal of the case was done without
considering the evidence adduced by the prosecution. Respondents added
that the MTC failed to observe the manner the trial of the case should
proceed as provided in Sec. 11, Rule 119 of the Rules of Court as well as
failed to rule on the civil liability of the accused in spite of the evidence
presented. The case was raffled to the Regional Trial Court (RTC) of
Negros Oriental, Br. 32.
533[14]

In the order534[15] dated 23 August 2005, the RTC affirmed the

acquittal of petitioner but ordered the remand of the case to the MTC for
further proceedings on the civil aspect of the case. The RTC ruled that the
MTCs recital of every fact in arriving at its conclusions disproved the
allegation that it failed to consider the evidence presented by the
prosecution. The records also demonstrated that the MTC conducted the
trial of the case in the manner dictated by Sec. 11, Rule 119 of the Rules of
Court, except that the defense no longer presented its evidence after the
MTC gave due course to the accuseds demurrer to evidence, the filing of
which is allowed under Sec. 23, Rule 119. The RTC however agreed that
the MTC failed to rule on the accuseds civil liability, especially since the
judgment of acquittal did not include a declaration that the facts from
which the civil liability might arise did not exist. Thus, the RTC declared
that the aspect of civil liability was not passed upon and resolved to
remand the issue to the MTC. The dispositive portion of the decision
states:
WHEREFORE, the questioned order of the Municipal Trial Court
of Sibulan on accuseds acquittal is AFFIRMED.
The case is
REMANDED to the court of origin or its successor for further
proceedings on the civil aspect of the case. No costs.
SO ORDERED.535[16]
Both parties filed their motions for reconsideration of the RTC
order, but these were denied for lack of merit in the order 536[17] dated 12
September 2005.

532
[13]

Id. at 72 and 74.

[14]

Records, pp. 3-11.

[15]

Rollo, pp. 75-81.

533

534

535
[16]

Id. at 81.

[17]

Id. at 89-90.

536

423
Respondents then filed a petition for review with the Court of
Appeals under Rule 42, docketed as CA-G.R. SP. No. 01179. The
appellate court subsequently rendered the assailed decision and resolution.
The Court of Appeals ruled that there being no proof of the total value of
the properties damaged, the criminal case falls under the jurisdiction of
the RTC and the proceedings before the MTC are null and void. In so
ruling, the appellate court cited Tulor v. Garcia (correct title of the case is
Cuyos v. Garcia)537[18] which ruled that in complex crimes involving
reckless imprudence resulting in homicide or physical injuries and damage
to property, the jurisdiction of the court to take cognizance of the case is
determined by the fine imposable for the damage to property resulting
from the reckless imprudence, not by the corresponding penalty for the
physical injuries charged. It also found support in Sec. 36 of the Judiciary
Reorganization Act of 1980 and the 1991 Rule 8 on Summary Procedure,
which govern the summary procedure in first-level courts in offenses
involving damage to property through criminal negligence where the
imposable fine does not exceed P10,000.00. As there was no proof of the
total value of the property damaged and respondents were claiming the
amount of P1,500,000.00 as civil damages, the case falls within the RTCs
jurisdiction. The dispositive portion of the Decision dated 17 August 2006
reads:
WHEREFORE, premises considered, judgment is hereby rendered
by Us REMANDING the case to the Regional Trial Court (RTC), Judicial
Region, Branch 32, Negros Oriental for proper disposition of the merits of
the case.
SO ORDERED.538[19]
Petitioner moved for reconsideration of the Court of Appeals
decision,539[20] arguing that jurisdiction over the case is determined by the
allegations in the information, and that neither the 1991 Rule on Summary
Procedure nor Sec. 36 of the Judiciary Reorganization Act of 1980 can be
the basis of the RTCs jurisdiction over the case. However, the Court of
Appeals denied the motion for reconsideration for lack of merit in the
Resolution dated 25 April 2007.540[21] It reiterated that it is the RTC that
has proper jurisdiction considering that the information alleged a willful,
unlawful, felonious killing as well as abandonment of the victims.
In the present petition for review, petitioner argues that the MTC
had jurisdiction to hear the criminal case for reckless imprudence, owing
to the enactment of Republic Act (R.A.) No. 7691, 541[22] which confers
537
[18]

No. L-46934, 15 April 1998, .

[19]

Rollo, p. 35.

[20]

Id. at 90-94.

[21]

Supra note 2.

538

539

540

541

424
jurisdiction to first-level courts on offenses involving damage to property
through criminal negligence. He asserts that the RTC could not have
acquired jurisdiction on the basis of a legally unfiled and officially
withdrawn amended information alleging abandonment. Respondents are
also faulted for challenging the MTCs order acquitting petitioner through
a special civil action for certiorari under Rule 65 in lieu of an ordinary
appeal under Rule 42.
The petition has merit. It should be granted.
The first issue is whether the Court of Appeals erred in ruling that
jurisdiction over the offense charged pertained to the RTC.
Both the MTC and the RTC proceeded with the case on the basis
of the Information dated 29 December 2004 charging petitioner only with
the complex crime of reckless imprudence resulting to homicide, less
serious physical injuries and damage to property. The Court of Appeals
however declared in its decision that petitioner should have been charged
with the same offense but aggravated by the circumstance of abandonment
of the victims. It appears from the records however that respondents
attempt to amend the information by charging the aggravated offense was
unsuccessful as the MTC had approved the Provincial Prosecutors motion
to withdraw their motion to amend the information. The information filed
before the trial court had remained unamended. 542[23] Thus, petitioner is
deemed to have been charged only with the offense alleged in the original
Information without any aggravating circumstance.
Article 365 of the Revised Penal Code punishes any person who,
by reckless imprudence, commits any act which, had it been intentional,
would constitute a grave felony, with the penalty of arresto mayor in its
maximum period to prision correccional in its medium period. When
such reckless imprudence the use of a motor vehicle, resulting in the death
of a person attended the same article imposes upon the defendant the
penalty of prision correccional in its medium and maximum periods.
The offense with which petitioner was charged is reckless
imprudence resulting in homicide, less serious physical injuries and
damage to property, a complex crime. Where a reckless, imprudent, or
negligent act results in two or more grave or less grave felonies, a complex
crime is committed.543[24] Article 48 of the Revised Penal Code provides
that when the single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means for committing the
[22]

Entitled AN ACT EXPANDING THE JURISDICTION OF THE METROPOLITAN TRIAL COURTS,

MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS, AMENDING FOR THE PURPOSE
BATAS PAMBANSA BLG. 129, OTHERWISE KNOWN AS THE JUDICIARY REORGANIZATION ACT OF
1980, which took effect on 14 April 1994.
542
[23]

See notes 8 and 9.

[24]

People v. de los Santos, 407 Phil. 724, 744 (2001, citing Reodica v. Court of Appeals, 292 SCRA 87, 102

543

(1998).

425
other, the penalty for the most serious crime shall be imposed, the same to
be applied in its maximum period. Since Article 48 speaks of felonies, it
is applicable to crimes through negligence in view of the definition of
felonies in Article 3 as acts or omissions punishable by law committed
either by means of deceit (dolo) or fault (culpa).544[25] Thus, the penalty
imposable upon petitioner, were he to be found guilty, is prision
correccional in its medium period (2 years, 4 months and 1 day to 4 years)
and maximum period (4 years, 2 months and 1 day to 6 years).
Applicable as well is the familiar rule that the jurisdiction of the
court to hear and decide a case is conferred by the law in force at the time
of the institution of the action, unless such statute provides for a
retroactive application thereof.545[26] When this case was filed on 29
December 2004, Section 32(2) of Batas Pambansa Bilang 129 had already
been amended by R.A. No. 7691. R.A. No. 7691 extended the jurisdiction
of the first-level courts over criminal cases to include all offenses
punishable with imprisonment not exceeding six (6) years irrespective of
the amount of fine, and regardless of other imposable accessory or other
penalties including those for civil liability. It explicitly states that in
offenses
involving
damage
to
property through
criminal
negligence, they shall have exclusive original jurisdiction thereof.
It follows that criminal cases for reckless
imprudence punishable with prision correccional in its medium and
maximum periods should fall within the jurisdiction of the MTC and not
the RTC. Clearly, therefore, jurisdiction to hear and try the same pertained
to the MTC and the RTC did not have original jurisdiction over the
criminal case.546[27] Consequently, the MTC of Sibulan, Negros Oriental
had properly taken cognizance of the case and the proceedings before it
were valid and legal.
As the records show, the MTC granted petitioners demurrer to
evidence and acquitted him of the offense on the ground of insufficiency
of evidence. The demurrer to evidence in criminal cases, such as the one
at bar, is filed after the prosecution had rested its case, and when the
same is granted, it calls for an appreciation of the evidence adduced by
the prosecution and its sufficiency to warrant conviction beyond
reasonable doubt, resulting in a dismissal of the case on the merits,
tantamount to an acquittal of the accused. 547[28] Such dismissal of a
criminal case by the grant of demurrer to evidence may not be
appealed, for to do so would be to place the accused in double
544
[25]

People v. de los Santos, 407 Phil. 724 (2001).

545
[26]
Venancio Figueroa y Cervantes v. People of the Philippines, G.R. No. 147406, 14 July 2008, citing
Alarilla v. Sandiganbayan, 393 Phil. 143, 155 (2000) and Escovar v. Justice Garchitorena, 466 Phil. 625, 635 (2004).
546
[27]

Venancio Figueroa y Cervantes v. People of the Philippines, G.R. No. 147406, 14 July 2008.

547
[28]
People v. Sandiganbayan, 488 Phil. 293, 310 (2004), citing People v. City of Silay, No. L-43790, 9
December 1976, 74 SCRA 247.

426
jeopardy.548[29] But while the dismissal order consequent to a demurrer to
evidence is not subject to appeal, the same is still reviewable but only by
certiorari under Rule 65 of the Rules of Court. Thus, in such case, the
factual findings of the trial court are conclusive upon the reviewing court,
and the only legal basis to reverse and set aside the order of dismissal
upon demurrer to evidence is by a clear showing that the trial court, in
acquitting the accused, committed grave abuse of discretion amounting to
lack or excess of jurisdiction or a denial of due process, thus rendering the
assailed judgment void.549[30]
Accordingly, respondents filed before the RTC the petition for
certiorari alleging that the MTC gravely abused its discretion in dismissing
the case and failing to consider the evidence of the prosecution in
resolving the same, and in allegedly failing to follow the proper procedure
as mandated by the Rules of Court. The RTC correctly ruled that the MTC
did not abuse its discretion in dismissing the criminal complaint. The
MTCs conclusions were based on facts diligently recited in the order
thereby disproving that the MTC failed to consider the evidence presented
by the prosecution. The records also show that the MTC correctly
followed the procedure set forth in the Rules of Court.
The second issue is whether the Court of Appeals erred in ordering
the remand of the case of the matter of civil liability for the reception of
evidence.
We disagree with the Court of Appeals on directing the remand of
the case to the RTC for further proceedings on the civil aspect, as well as
with the RTC in directing a similar remand to the MTC.
The acquittal of the accused does not automatically preclude a
judgment against him on the civil aspect of the case. The extinction of the
penal action does not carry with it the extinction of the civil liability
where: (a) the acquittal is based on reasonable doubt as only
preponderance of evidence is required; (b) the court declares that the
liability of the accused is only civil; and (c) the civil liability of the
accused does not arise from or is not based upon the crime of which the
accused is acquitted. 550[31] However, the civil action based on delict may
be deemed extinguished if there is a finding on the final judgment in the
criminal action that the act or omission from which the civil liability may
arise did not exist551[32] or where the accused did not commit the acts or
omission imputed to him.552[33]
548
[29]

Id.

[30]

People v. Uy, G.R. No. 158157, 30 September 2005, 471 SCRA 668.

[31]

Hun Hyung Park v. Eung Won Choi, G.R. No. 165496, 12 February 2007, 515 SCRA 502, 513.

[32]

RULES OF COURT, Rule 111, Sec. 2, last par.

[33]

Salazar v. People, 458 Phil. 504 (2003).

549

550

551

552

427

Thus, if demurrer is granted and the accused is acquitted by the

court, the accused has the right to adduce evidence on the civil aspect of
the case unless the court also declares that the act or omission from which
the civil liability may arise did not exist.553[34] This is because when the
accused files a demurrer to evidence, he has not yet adduced evidence
both on the criminal and civil aspects of the case. The only evidence on
record is the evidence for the prosecution. What the trial court should do
is issue an order or partial judgment granting the demurrer to evidence and
acquitting the accused, and set the case for continuation of trial for the
accused to adduce evidence on the civil aspect of the case and for the
private complainant to adduce evidence by way of rebuttal. Thereafter,
the court shall render judgment on the civil aspect of the case.554[35]
A scrutiny of the MTCs decision supports the conclusion that the
acquittal was based on the findings that the act or omission from which the
civil liability may arise did not exist and that petitioner did not commit the
acts or omission imputed to him; hence, petitioners civil liability has been
extinguished by his acquittal. It should be noted that the MTC
categorically stated that it cannot find any evidence which would prove
that a crime had been committed and that accused was the person
responsible for it. It added that the prosecution failed to establish that it
was petitioner who committed the crime as charged since its witnesses
never identified petitioner as the one who was driving the cargo truck at
the time of the incident. Furthermore, the MTC found that the proximate
cause of the accident is the damage to the rear portion of the truck caused
by the swerving of the Colt Galant into the rear left portion of the cargo
truck and not the reckless driving of the truck by petitioner, clearly
establishing that petitioner is not guilty of reckless imprudence.
Consequently, there is no more need to remand the case to the trial court
for proceedings on the civil aspect of the case, since petitioners acquittal
has extinguished his civil liability.
******************
It must be pointed out, however, that in PEOPLE VS. TAMPAL,
244 SCRA 202 and PEOPLE VS. LEVISTE, 255 SCRA 238, the SC
reversed the dismissal of the criminal case by the trial court based on
speedy trial since the same was not predicated on the clear right of the
accused to speedy trial. It is only when there is a clear violation of the
accuseds right to speedy trial that the dismissal results in double jeopardy.
3. Double jeopardy, 102 SCRA 44 and 12 SCRA 561
4. When the act is punished by both a law and an ordinance:
PEOPLE VS. RELOVA, 148 SCRA 292
553
[34]

Id. at 607.

[35]

Id. at 518-519.

554

428
If the accused was charged of theft of electricity based on the
City Ordinance of Batangas and not based on the Revised Penal Code and
later on the case is dismissed by the judge due to the fact that the crime
has prescribed, the government can no longer charge the accused of the
same crime under the Revised Penal Code since double jeopardy has set
in.
Read:
1. P vs. Duero, 104 SCRA 379
2. CUDIA VS. CA, 284 SCRA 173
3. CUISON VS. CA, 289 SCRA 159
2. P vs. Jara, 144 SCRA 516
3. P vs. Abano, 145 SCRA 555
4. P vs. Tolentino, 145 SCRA 597
5. P vs. Salig, 133 SCRA 59
6. P vs. Cruz, 133 SCRA 426
7. P vs. Prudente,, 133 SCRA 651
8 P vs. Trinidad, 162 SCRA 714, when the
regularity does7, 1966
2. P vs. City Court,154 SCRA 175
3. Galman vs. Pamaran, 144 SCRA 43
4. P vs. Molero, 144 SCRA 397
5. P vs. Quibate, 131 SCRA 81
6. P vs. Obania, June 29,1968
7. Dionaldo vs. Dacuycuy, 108 SCRA 736
8. P vs. Judge Hernando, 108 SCRA 121
9. Esmena vs. Judge Pogoy, 102 SCRA 861
10. Mazo vs. Mun. Court, 113 SCRA 217
11. Andres vs. Cacdac, 113 SCRA 217
12. Buerano vs. CA, 115 SCRA 82
13. P vs. Militante, 117 SCRA 910
14. P vs. Fuentebella, 100 SCRA 672
15. Lazaro vs. P, 112 SCRA 430
16. Flores vs. Enrile, 115 SCRA 236
17. Bernarte vs. Sec. ,116 SCRA 43
18. Ko Bu Lin vs. CA, 118 SCRA 573
19. P vs. Duran, 1075 SCRA 979
20. P vs. Cuevo, 104 SCRA 312
21. Jimenez vs. Military Commission, 102 SCRA 39
22. P vs. Liwanag, 73 SCRA 473
23. P vs. Araula, January 30, 1982
24. P vs. Baladjay, March 30, 1982
25. P vs. City Court of Silay, 74 SCRA 247
28. P vs. Pilpa, 79 SCRA 81
29. P vs. Gloria, December 29, 1977
30. P vs. Galano, 75 SCRA 193
31. Tacas vs. Cariasco, 72 SCRA 527
32. P vs. Ledesma, 73 SCRA 77
33. P vs. Consulta, 70 SCRA 277

presumption of

429
34. P vs. Inting, 70 SCRA 289
35. De Guzman vs. Escalona, 97 SCRA 619
36. P vs. Pablo, 98 SCRA 289
37. Cruz vs. Enrile, 160 SCRA 700
38. Tangan vs. P, 155 SCRA 435
39. P vs. Quezada, 160 SCRA 516
40. Canizano vs. P, 159 SCRA 599
41. Bustamante vs. Maceren, 48 SCRA 144
There is no double jeopardy in this case:
PEOPLE VS. MOLERO
G.R No. L-67842, September 24, 1986
FACTS:
1. Molero was charged for having raped his daughter. The original
complaint was dated March 22, 1977, the complainant charged Molero of
having raped her on the "13th day of February 1976".
2. Molero was arraigned and pleaded "Not Guilty";
3. During the trial, the complainant testified that she was raped by her
father on February 5, 1976 and not February 13, 1976 as alleged in the
complaint;
4. The Fiscal filed a motion for leave to amend the complaint. The
motion was granted but was subsequently reconsidered. The lower court in
its order dismissed the original complaint, but ordered the Fiscal to cause
the filing of a new complaint charging the proper offense of rape
committed on or before February 5, 1976;
5. A new complaint was therefore filed dated March 30, 1978
6. Molero claims that the new complaint places him in double jeopardy.
HELD:
There is no double jeopardy.
a. Dismissal of the first case contemplated by the rule against double
jeopardy presupposes a definite and unconditional dismissal which
terminates the case.(Jaca vs. Blanco, 86 Phil. 452; People vs. Manlapas,
5 SCRA 883; People vs. Mogol, 131 SCRA 296) And "for dismissal to
be a bar under the jeopardy clause of the Constitution, it must have
the effect of acquittal.(People vs. Agoncillo, 40 SCRA 579);
b. It is quite clear that the order of the trial court dismissal the original
complaint was without prejudice to the filing of a new complaint and/or

430
information charging Molero with the proper offense. The said dismissal
did not therefore amount to an acquittal.
c. In fact there was no need for the trial court to have adopted such a
cumbersome procedure. It could have merely ordered an amendment of
the complaint. Sec. 12, Rule 119 of the Revised Rules of Court applies
when there is a mistake in charging the proper offense, but not when an
honest error of a few days is sought to be corrected and the change does
not affect the rights of the accused.
d. The precise time of the commission of the crime is not an essential
element of the offense of rape. The amendment of the complaint changing
the date of the commission of the crime of rape from February 13, 1976 to
February 5, 1976 , a difference of 8 days was only a matter of form under
the facts of this case and did not prejudice the rights of the accused.
e. The reliance of the accused on the case of People vs. Opemia, 98 Phil.
698 is not well-taken. In the said case the proposed amendment was
the changing of the date of the commission of the crime from June 18,
1952 to July 1947, or a difference of 5 years. The S.C. held that the
amendment that would change the date of the commission of the
offense from 1947 to 1952 is certainly not a matter of form.
f. The dismissal of the first complaint did not amount to the appellant's
acquittal. In effect, the order of dismissal does not constitute a proper basis
for a claim of double jeopardy. (People vs. Bocar, 138 SCRA 166)
5. May the government appeal a judgment of acquittal or
of the penalty imposed? No.

for the increase

PEOPLE VS. HON. VELASCO, G.R. NO. 127444, 340 SCRA 207,
SEPT. 13, 2000.
Double Jeopardy. Evolution of doctrine. Appeal by the Government from
verdicts of acquittal.
As mandated by the Constitution, statutes and cognate jurisprudence, an
acquittal is final and unappealable on the ground of double jeopardy,
whether it happens at the trial court of a judgment of acquittal brought
before the Supreme Court on certiorari cannot be had unless there is a
finding of mistrial, as in Galman vs. Sandiganbayan.
6. May the appellate court of the Supreme Court increase the pernalty
imposed by the trial court on appeal by the accused? Yes.
PEOPLE VS. DOMINGO, G.R. No. 184343, March 2, 2009

431
Appellant Jesus Domingo assails the Decision555[1] of the Court of
Appeals dated 30 April 2008 in CA-G.R. CR No. 30511, modifying the
Decision556[2] dated 13 November 2006 of Branch 13 of the Regional Trial
Court (RTC) of Malolos, Bulacan. The Court of Appeals found appellant
guilty beyond reasonable doubt of murder in Criminal Cases No. 1496-M2000 and No. 1497-M-2000, attempted murder in Criminal Cases No.
1498-M-2000 and No. 1501-M-2000, frustrated murder in Criminal Case
No. 1500-M-2000, and frustrated homicide in Criminal Case No. 1499-M2000.
On 7 September 2000, appellant, with the assistance of counsel,
was arraigned and he entered separate pleas of Not Guilty to the crimes
charged. Thereafter, pre-trial conference was held, and trial ensued
accordingly.557[4]
The accused was convicted of Homicide, instead of Murder. On
Appeal to the Court of Appeals, the CA held that the crime proven by the
prosecution is Murder and therefore increased the penalty from Homicide
to Murder.
Is increase in the penalty valid?
Yes because it was the accused who interposed the appeal
making the court review the evidence. And it it finds the evidence
sufficient for conviction of the crime of Murder, it could increase the
penalty.
Read:
1. Central Bank of the Philippines vs. CA, GR No.
8, 1989
1-a. P vs. Montemayor, January 30, 1969, 26 SCRA
2. P vs. Ruiz,81 SCRA 455
3. US vs. Yam Tung Way, 21 Phil. 67
4. P vs. Ang ho Kio, 95 Phil. 475

41859, March
687

6. The "Supervening Fact Doctrine."

Read:
1. 76 SCRA 469
2. P vs. Tarok, 73 Phil. 260
3. P vs. Villasis, 46 O.G. 268
4. Melo vs. People, 85 Phil. 766
5. P vs. Buling, 107 Phil. 712
555

556[2]
557[4]

[1]

Penned by Associate Justice Fernanda Lampas Peralta with Associate Justices Edgardo P.
Cruz and Apolinario D. Bruselas, Jr., concurring; rollo, pp. 2-25.
Penned by Presiding Judge Andres B. Soriano; CA rollo, pp. 11-23.
Id. at 13.

432
5-a. P vs. Adil, 76 SCRA 462
5-b. P. vs. Tac-an, 182 SCRA 601
6. P vs. City Court of Manila, 121 SCRA 637
7. Read also Sec. 7, Rule 117, 1985 Rules on

Criminal Procedure

CHAPTER XXI
RIGHT AGAINST EX-POST FACTO LAW,
BILL OF ATTAINER, ETC.
Read:
1. Nunez vs. Sandiganbayan, 111 SCRA 433
2-LACSON VS. SANDIGANBAYAN, January 20, 1999
PANFILO M. LACSON VS. THE EXECUTIVE SECRETARY, THE
SANDIGANBAYAN, ET AL.
ROMEO ACOP & FRANCISCO ZUBIA, JR., Petitioners-Intervenors
G.R. No. 128096, January 20, 1999
The petitioner seeks to stop the Sandiganbayan from trying the
multiple murder case against him and 26 other police officers for the
death of 11 Kuratong Baleleng members in the early morning of May 18,
1995 at Commonwealth Avenue, Quezon City. The police officers claimed
that it was a shoot-out between them and the Kuratong Baleleng Members
while SPO2 Eduardo de los Reyes claimed it was a summary execution or
rub-out.
The preliminary investigation conducted by the Deputy
Ombudsman for Military Affairs resulted in the dismissal of the cases after
finding that the incident was a legitimate police operation. However, the
Review Board led by Deputy Ombudsman Francisco Villa resulted in the
filing of multiple murder cases against the petitioner and his companion
where he was indicted as a principal.
Upon motion by the petitioner and his co-police officers with leave
from the Sandiganbayan, a Motion for Reconsideration was filed with the
Office of the Ombudsman who AMENDED the 11 informations on
March 1, 1996 charging the petitioner , ROMEO ACOP and FRANCISCO
ZUBIA, JR., as mere accessories.
On March 5-6,1996, the accused questioned the jurisdiction of the
Sandiganbayan over the 11 criminal cases since under Republic Act No.
7975, particularly Section 2, paragraphs [a] and [c], the said court has
jurisdiction only if one or more of the principal accused has a rank of
Brigadier General (Chief Superintendent) or higher and since the highest
PNP officer charged as a principal accused is merely Chief Inspector, the
Regional Trial Court of Quezon City has jurisdiction to try and decide the
same.

433
On May 8, 1996, the Sandiganbayan issued a Resolution
transferring the case to the RTC of Quezon City which has original and
exclusive jurisdiction over the cases under RA 7975. On May 17, 1996,
the Office of the Special Prosecutor moved for a Reconsideration and
insisted that the cases should remain with the Sandiganbayan which was
opposed by the petitioner and his co-accused.
While the Motions for Reconsideration were pending before the
Sandiganbayan, Congress passed into law Republic Act No. 8249 which
was approved by the President on February 5, 1997 entitled AN ACT
FURTHER
DEFINING
THE
JURISDICTION
OF
THE
SANDIGANBAYAN, AMENDING FOR THIS PURPOSE PD 1606, AS
AMENDED, PROVIDING FUNDS THEREFOR which deleted the word
PRINCIPAL in Section 2, paragraphs [a] and [c] of RA 7975 thereby
giving jurisdiction to the Sandiganbayan criminal cases involving police
generals like the petitioners even though they are not charged as principals
but merely accessories or accomplices. The new law further provides that
it shall be applicable to all cases which are pending in court before the
passage of the same provided trial has not begun at the time of its
approval.
On March 5, 1997, the Sandiganbayan issued its Resolution
denying the Motion for Reconsideration of the Office of the Special
Prosecutor and ruled that it stands pat in its Resolution dated May 8,
1996 ordering the transfer of the 11 criminal cases to the RTC of Quezon
City. On the same day, however, the Sandiganbayan issued an
ADDENDUM to its March 5, 1997 Resolution where it that with the
passage of RA 8249, the court admitted the amended informations in
these cases and by the unanimous vote of 4 with 1 neither concurring nor
dissenting, retained jurisdiction to try and decide the cases.
The petitioner questioned the said Resolution
Sandiganbayan to the Supreme Court on the following grounds:

of

the

1. their right to due process of law and equal protection of the law was
violated as a result of the application of the new law by which restored to
the Sandiganbayan jurisdiction over their cases especially so that the
Sandiganbayan has foot-dragged for 9 months the resolution of the
pending incident involving the transfer of these cases to the RTC of
Quezon City and waited for the passage of the law to overtake such
resolution and thereby rendering their vested rights under the old
Sandiganbayan law moot;
2. the retroactive application of the new law violates their constitutional right
against ex-post facto law;
3. the title of the law is misleading in that it contains the aforesaid innocuous
provisions in Sections 4 and 7 which actually expands rather than defines

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the old Sandiganbayan law thereby violating the one title one subject
requirement of Section 26 [1] Article VI of the Constitution.
The petitioners-intervenors claimed that while the law (Sections 4
and 7) innocuously appears to have merely expanded the jurisdiction of
the Sandiganbayan, it is in fact a class legislation and an ex-post facto law
statute intended specifically to apply to all the accused in the Kuratong
Baleleng case pending before the Sandiganbayan. Finally, if their case will
be tried by the Sandiganbayan, they will be deprived of their two-tiered
appeal to the Sandiganbayan which they acquire under RA 7975 before
recourse to the Supreme Court could be made.
Held:
1. The contention that the law violates petitioners right to due process and
equal protection of the law is too shallow to deserve merit. It is an
established precept in constitutional law that the guaranty of the equal
protection of the laws is not violated by a legislation based on reasonable
classification. The classification is reasonable and not arbitrary when there
is concurrence of four elements, namely:
a.
b.
c.
d.

it must rest on real and substantial distinctions;

it must be germane to the purposes of the law;
must not be limited to existing conditions only; and
must apply equally to all members of the same classall of which are present in this case.
The classification between those pending cases involving
concerned public officials whose trial has not yet commenced and whose
cases could have been affected by the amendments of the Sandiganbayan
jurisdiction under RA 8249, as against those whose cases where trial has
already started as of the approval of the law rests on substantial distinction
that makes real differences. In the 1st instance, evidence against them were
not yet presented, whereas in the latter the parties have already submitted
their respective proofs, examined witnesses and presented documents.
Since it is within the power of Congress to define the jurisdiction of the
courts, it can be reasonably anticipated that an alteration of that
jurisdiction necessarily affect pending cases, which is why it has to
provide for a remedy in the form of a transitory provision. The transitory
provision does not only cover cases which are in the Sandiganbayan but
also in any court. It just happened that the Kuratong Baleleng cases are
one of those affected by the law. Moreover, those cases where trial has
already begun are not affected by the transitory provision under Section 7
of the new law (RA 8249).

2. The petitioners argument that the retroactive application of the new law to
the Kuratong Baleleng cases constitutes an ex post facto law for they are
deprived of their right to due process as they can no longer avail of the

435
two-tiered appeal which they had allegedly acquired under RA 7975 is
without merit.
In order that a law is an ex post facto law, the same must be one
a. which makes an act done criminal before the passing of the
law and which was innocent when committed, and punishes
such action;
b. which aggravates a crime or makes it greater than when it was
committed;
c. which changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it was
committed;
d. which alters the legal rules of evidence and receives less or
different testimony than the law required a the time of the
commission of the offense in order to convict the defendant;
e. every law which, in relation to the offense or its consequences,
alters the situation of a person to his disadvantage;
f. that which assumes to regulate civil rights and remedies but in
effect imposes a penalty or deprivation of a right which when
done was lawful;
g. deprives a person accused of a crime of some lawful protection
to which he has become entitled, such as the protection of a
former conviction or acquittal, or a proclamation of amnesty
(KAY VILLEGAS KAMI, 35 SCRA 429; MEJIA VS.
PAMARAN, 160 SCRA 457; TAN VS. BARRIOS, 190 SCRA
686; PEOPLE VS. SANDIGANBAYAN, 211 SCRA 241).
Ex post facto law prohibits the retrospectivity of penal laws. RA
8249 is not a penal law. It is a substantive law on jurisdiction which is not
penal in character.
The other contention that their right to a two-tiered appeal which
they acquired under RA 7975 has been diluted by the enactment of RA
8249 is incorrect. The same contention had been rejected by the court
several times in the cases of RODRIGUEZ VS. SANDIGANBAYAN, 205
Phil. 567; ALVIAR VS. SANDIGANBAYAN, 137 SCRA 63; NUNEZ
VS. SANDIGANBAYAN, 111 SCRA 433; DE GUZMAN VS. PEOPLE,
December 15, 1982 considering that the right to appeal is not a natural
right but statutory in nature that can be regulated by law. The mode of
procedure provided for in the statutory right of appeal is not included in
the prohibition against ex post facto laws. Moreover, the new law did not
alter the rules of evidence or the mode of trial.
3. The contention that the new Sandiganbayan law violates the one title-one
subject provision of the Constitution is without merit. The petitioners
claim that the new does not define the jurisdiction of the Sandiganbayan
but expands the same. But even assuming that that is true, the expansion

436
of the jurisdiction, does not have to be expressly stated in the title of the
law because such is the necessary consequence of the amendments. The
requirement that every bill must only have one subject expressed in the
title is satisfied if the title is comprehensive enough, as in this case, to
include subjects related to the general purpose which the statute seeks to
achieve. The Congress, in employing the word define in the title of the
law, acted within its power since Section 2, Article VIII of the Constitution
itself empowers the legislative body to define, prescribe and apportion
the jurisdiction of various courts.
(NOTE: Though the Supreme Court rejected all the above arguments
raised by the petitioner and the intervenors who are against the trial of
their cases with the Sandiganbayan and prefer to have their cases be tried
and decided by the RTC of Quezon City, they got what they want in the
end because it was held that the 11 criminal informations failed to alleged
that they committed the crimes in relation to their public office which is a
jurisdictional requirement in order that the same be tried by the
Sandiganbayan.
Finally, sometime in May, 1999, the Quezon City RTC to whom
the said cases were raffled DISMISSED the 11 murder cases as a result of
the retraction made by the eyewitnesses. The same was revived by the
DOJ in April, 2001. The same was returned to the QC RTC to determine if
the 2-year provisional rule under the 2000 Rules on Criminal Procedure is
applicable)
2.a. Kay Villegas Kami, 35 SCRA 429
3. Sevilleja vs. COMELEC, 107 SCRA 141
4. P vs. Ferrer, 46 & 56 SCRA
5. Tan vs. Barrios, October 18, 1990