JESUS C. GARCIA, Petitioner, vs.

THE HONORABLE
RAY ALAN T. DRILON, Presiding Judge, Regional
Trial Court-Branch 41, Bacolod City, and ROSALIE
JAYPE-GARCIA, for herself and in behalf of minor
children, namely: JO-ANN, JOSEPH EDUARD,
JESSE ANTHONE, all surnamed GARCIA,
Respondents.

Private respondent married petitioner in 2002 when she

was 34 years old and the former was eleven years her
senior. They have three (3) children, namely: Jo-Ann J.
Garcia, 17 years old, who is the natural child of petitioner
but whom private respondent adopted; Jessie Anthone J.
Garcia, 6 years old; and Joseph Eduard J. Garcia, 3
years old.8

Hailed as the bastion of Christianity in Asia, the

Philippines boasts of 86.8 million Filipinos- or 93 percent
of a total population of 93.3 million adhering to the
teachings of Jesus Christ.1 Yet, the admonition for
husbands to love their wives as their own bodies just as
Christ loved the church and gave himself up for her2
failed to prevent, or even to curb, the pervasiveness of
violence against Filipino women. The National
Commission on the Role of Filipino Women (NCRFW)
reported that, for the years 2000-2003, "female violence
comprised more than 90o/o of all forms of abuse and
violence and more than 90% of these reported cases
were committed by the women's intimate partners such
as their husbands and live-in partners."3

Private respondent described herself as a dutiful and

faithful wife, whose life revolved around her husband. On
the other hand, petitioner, who is of Filipino-Chinese
descent, is dominant, controlling, and demands absolute
obedience from his wife and children. He forbade private
respondent to pray, and deliberately isolated her from
her friends. When she took up law, and even when she
was already working part time at a law office, petitioner
trivialized her ambitions and prevailed upon her to just
stay at home. He was often jealous of the fact that his
attractive wife still catches the eye of some men, at one
point threatening that he would have any man eyeing her
killed.9

Thus, on March 8, 2004, after nine (9) years of spirited

advocacy by women's groups, Congress enacted
Republic Act (R.A.) No. 9262, entitled "An Act Defining
Violence Against Women and Their Children, Providing
for Protective Measures for Victims, Prescribing
Penalties Therefor, and for Other Purposes." It took
effect on March 27, 2004.4
R.A. 9262 is a landmark legislation that defines and
criminalizes acts of violence against women and their
children (VAWC) perpetrated by women's intimate
partners, i.e, husband; former husband; or any person
who has or had a sexual or dating relationship, or with
whom the woman has a common child.5 The law
provides for protection orders from the barangay and the
courts to prevent the commission of further acts of
VAWC; and outlines the duties and responsibilities of
barangay officials, law enforcers, prosecutors and court
personnel, social workers, health care providers, and
other local government officials in responding to
complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the
constitutionality of R.A. 9262 as being violative of the
equal protection and due process clauses, and an undue
delegation of judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private
respondent) filed, for herself and in behalf of her minor
children, a verified petition6 (Civil Case No. 06-797)
before the Regional Trial Court (RTC) of Bacolod City for
the issuance of a Temporary Protection Order (TPO)
against her husband, Jesus C. Garcia (petitioner),
pursuant to R.A. 9262. She claimed to be a victim of
physical abuse; emotional, psychological, and economic
violence as a result of marital infidelity on the part of
petitioner, with threats of deprivation of custody of her
children and of financial support.7
Private respondent's claims

Things turned for the worse when petitioner took up an

affair with a bank manager of Robinson's Bank, Bacolod
City, who is the godmother of one of their sons.
Petitioner admitted to the affair when private respondent
confronted him about it in 2004. He even boasted to the
household help about his sexual relations with said bank
manager. Petitioner told private respondent, though, that
he was just using the woman because of their accounts
with the bank.10
Petitioner's infidelity spawned a series of fights that left
private respondent physically and emotionally wounded.
In one of their quarrels, petitioner grabbed private
respondent on both arms and shook her with such force
that caused bruises and hematoma. At another time,
petitioner hit private respondent forcefully on the lips that
caused some bleeding. Petitioner sometimes turned his
ire on their daughter, Jo-Ann, who had seen the text
messages he sent to his paramour and whom he blamed
for squealing on him. He beat Jo-Ann on the chest and
slapped her many times. When private respondent
decided to leave petitioner, Jo-Ann begged her mother to
stay for fear that if the latter leaves, petitioner would beat
her up. Even the small boys are aware of private
respondent's sufferings. Their 6-year-old son said that
when he grows up, he would beat up his father because
of his cruelty to private respondent.11
All the emotional and psychological turmoil drove private
respondent to the brink of despair. On December 17,
2005, while at home, she attempted suicide by cutting
her wrist. She was found by her son bleeding on the
floor. Petitioner simply fled the house instead of taking
her to the hospital. Private respondent was hospitalized
for about seven (7) days in which time petitioner never
bothered to visit, nor apologized or showed pity on her.
Since then, private respondent has been undergoing
therapy almost every week and is taking anti-depressant
medications.12
When private respondent informed the management of
Robinson's Bank that she intends to file charges against

the bank manager, petitioner got angry with her for

jeopardizing the manager's job. He then packed his
things and told private respondent that he was leaving
her for good. He even told private respondent's mother,
who lives with them in the family home, that private
respondent should just accept his extramarital affair
since he is not cohabiting with his paramour and has not
sired a child with her.13

conjugal dwelling without any danger from the

Respondent.

Private respondent is determined to separate from

petitioner but she is afraid that he would take her
children from her and deprive her of financial support.
Petitioner had previously warned her that if she goes on
a legal battle with him, she would not get a single
centavo.14

The Chief of Police shall also give the Petitioner police

assistance on Sunday, 26 March 2006 because of the
danger that the Respondent will attempt to take her
children from her when he arrives from Manila and finds
out about this suit.

Petitioner controls the family businesses involving mostly

the construction of deep wells. He is the President of
three corporations 326 Realty Holdings, Inc., Negros
Rotadrill Corporation, and J-Bros Trading Corporation
of which he and private respondent are both
stockholders. In contrast to the absolute control of
petitioner over said corporations, private respondent
merely draws a monthly salary of P20,000.00 from one
corporation only, the Negros Rotadrill Corporation.
Household expenses amounting to not less than
P200,000.00 a month are paid for by private respondent
through the use of credit cards, which, in turn, are paid
by the same corporation together with the bills for
utilities.15
On the other hand, petitioner receives a monthly salary
of P60,000.00 from Negros Rotadrill Corporation, and
enjoys unlimited cash advances and other benefits in
hundreds of thousands of pesos from the
corporations.16 After private respondent confronted him
about the affair, petitioner forbade her to hold office at
JBTC Building, Mandalagan, where all the businesses of
the corporations are conducted, thereby depriving her of
access to full information about said businesses. Until
the filing of the petition a quo, petitioner has not given
private respondent an accounting of the businesses the
value of which she had helped raise to millions of
pesos.17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent
danger of violence against the private respondent and
her children exists or is about to recur, the RTC issued a
TPO18 on March 24, 2006 effective for thirty (30) days,
which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is
hereby:
a) Ordered to remove all his personal belongings from
the conjugal dwelling or family home within 24 hours
from receipt of the Temporary Restraining Order and if
he refuses, ordering that he be removed by police
officers from the conjugal dwelling; this order is
enforceable notwithstanding that the house is under the
name of 236 Realty Holdings Inc. (Republic Act No.
9262 states "regardless of ownership"), this is to allow
the Petitioner (private respondent herein) to enter the

After the Respondent leaves or is removed from the

conjugal dwelling, or anytime the Petitioner decides to
return to the conjugal dwelling to remove things, the
Petitioner shall be assisted by police officers when reentering the family home.

b) To stay away from the petitioner and her children,

mother and all her household help and driver from a
distance of 1,000 meters, and shall not enter the gate of
the subdivision where the Petitioner may be temporarily
residing.
c) Not to harass, annoy, telephone, contact or otherwise
communicate with the Petitioner, directly or indirectly, or
through other persons, or contact directly or indirectly
her children, mother and household help, nor send gifts,
cards, flowers, letters and the like. Visitation rights to the
children may be subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber
firearm and a Walther PPK and ordering the Philippine
National Police Firearms and Explosives Unit and the
Provincial Director of the PNP to cancel all the
Respondent's firearm licenses. He should also be
ordered to surrender any unlicensed firearms in his
possession or control.
e) To pay full financial support for the Petitioner and the
children, including rental of a house for them, and
educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits,
bonuses and other cash he received from all the
corporations from 1 January 2006 up to 31 March 2006,
which himself and as President of the corporations and
his Comptroller, must submit to the Court not later than 2
April 2006. Thereafter, an accounting of all these funds
shall be reported to the court by the Comptroller, copy
furnished to the Petitioner, every 15 days of the month,
under pain of Indirect Contempt of Court.
h) To ensure compliance especially with the order
granting support pendente lite, and considering the
financial resources of the Respondent and his threat that
if the Petitioner sues she will not get a single centavo,
the Respondent is ordered to put up a BOND TO KEEP
THE PEACE in the amount of FIVE MILLION PESOS, in
two sufficient sureties.
On April 24, 2006, upon motion19 of private respondent,
the trial court issued an amended TPO,20 effective for
thirty (30) days, which included the following additional
provisions:

i) The petitioners (private respondents herein) are given

the continued use of the Nissan Patrol and the Starex
Van which they are using in Negros Occidental.

receipt of the Temporary Protection Order by his

counsel, otherwise be declared in indirect contempt of
Court;

j) The petitioners are given the continued use and

occupation of the house in Paraaque, the continued
use of the Starex van in Metro Manila, whenever they go
to Manila.

e) That respondent surrender his two firearms and all

unlicensed firearms to the Clerk of Court within 24 hours
from receipt of the Temporary Protection Order by his
counsel;

k) Respondent is ordered to immediately post a bond to

keep the peace, in two sufficient sureties.

f) That respondent shall pay petitioner educational

expenses of the children upon presentation of proof of
payment of such expenses.23

l) To give monthly support to the petitioner provisionally

fixed in the sum of One Hundred Fifty Thousand Pesos
(Php 150,000.00) per month plus rental expenses of
Fifty Thousand Pesos (Php 50,000.00) per month until
the matter of support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an
Opposition to the Urgent Ex-Parte Motion for Renewal of
the TPO21 seeking the denial of the renewal of the TPO
on the grounds that it did not (1) comply with the threeday notice rule, and (2) contain a notice of hearing. He
further asked that the TPO be modified by (1) removing
one vehicle used by private respondent and returning
the same to its rightful owner, the J-Bros Trading
Corporation, and (2) cancelling or reducing the amount
of the bond from P5,000,000.00 to a more manageable
level at P100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for
the modification of the TPO to allow him visitation rights
to his children.
On May 24, 2006, the TPO was renewed and extended
yet again, but subject only to the following modifications
prayed for by private respondent:
a) That respondent (petitioner herein) return the clothes
and other personal belongings of Rosalie and her
children to Judge Jesus Ramos, co-counsel for
Petitioner, within 24 hours from receipt of the Temporary
Protection Order by his counsel, otherwise be declared
in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of
furniture and equipment in the conjugal house in Pitimini
St., Capitolville Subdivision, Bacolod City within 24 hours
from receipt of the Temporary Protection Order by his
counsel;
c) Ordering the Chief of the Women's Desk of the
Bacolod City Police Headquarters to remove
Respondent from the conjugal dwelling within eight (8)
hours from receipt of the Temporary Protection Order by
his counsel, and that he cannot return until 48 hours
after the petitioners have left, so that the petitioner
Rosalie and her representatives can remove things from
the conjugal home and make an inventory of the
household furniture, equipment and other things in the
conjugal home, which shall be submitted to the Court.
d) Deliver full financial support of Php200,000.00 and
Php50,000.00 for rental and Php25,000.00 for clothes of
the three petitioners (sic) children within 24 hours from

Claiming that petitioner continued to deprive them of

financial support; failed to faithfully comply with the TPO;
and committed new acts of harassment against her and
their children, private respondent filed another
application24 for the issuance of a TPO ex parte. She
alleged interalia that petitioner contrived a replevin suit
against himself by J-Bros Trading, Inc., of which the
latter was purportedly no longer president, with the end
in view of recovering the Nissan Patrol and Starex Van
used by private respondent and the children. A writ of
replevin was served upon private respondent by a group
of six or seven policemen with long firearms that scared
the two small boys, Jessie Anthone and Joseph
Eduard.25
While Joseph Eduard, then three years old, was driven
to school, two men allegedly attempted to kidnap him,
which incident traumatized the boy resulting in his
refusal to go back to school. On another occasion,
petitioner allegedly grabbed their daughter, Jo-Ann, by
the arm and threatened her.26 The incident was
reported to the police, and Jo-Ann subsequently filed a
criminal complaint against her father for violation of R.A.
7610, also known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination
Act."
Aside from the replevin suit, petitioner's lawyers initiated
the filing by the housemaids working at the conjugal
home of a complaint for kidnapping and illegal detention
against private respondent. This came about after
private respondent, armed with a TPO, went to said
home to get her and her children's belongings. Finding
some of her things inside a housemaid's (Sheryl Jamola)
bag in the maids' room, private respondent filed a case
for qualified theft against Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective
for thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is
hereby:
1) Prohibited from threatening to commit or committing,
personally or through another, acts of violence against
the offended party;
2) Prohibited from harassing, annoying, telephoning,
contacting or otherwise communicating in any form with
the offended party, either directly or indirectly;

3) Required to stay away, personally or through his

friends, relatives, employees or agents, from all the
Petitioners Rosalie J. Garcia and her children, Rosalie J.
Garcia's three brothers, her mother Primitiva Jaype,
cook Novelita Caranzo, driver Romeo Hontiveros,
laundrywoman Mercedita Bornales, security guard
Darwin Gayona and the petitioner's other household
helpers from a distance of 1,000 meters, and shall not
enter the gate of the subdivision where the Petitioners
are temporarily residing, as well as from the schools of
the three children; Furthermore, that respondent shall
not contact the schools of the children directly or
indirectly in any manner including, ostensibly to pay for
their tuition or other fees directly, otherwise he will have
access to the children through the schools and the TPO
will be rendered nugatory;
4) Directed to surrender all his firearms including .9MM
caliber firearm and a Walther PPK to the Court;
5) Directed to deliver in full financial support of
Php200,000.00 a month and Php50,000.00 for rental for
the period from August 6 to September 6, 2006; and
support in arrears from March 2006 to August 2006 the
total amount of Php1,312,000.00;
6) Directed to deliver educational expenses for 20062007 the amount of Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol
with Plate No. FEW 508 and a Starex van with Plate No.
FFD 991 and should the respondent fail to deliver said
vehicles, respondent is ordered to provide the petitioner
another vehicle which is the one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell,
lease or otherwise dispose of the conjugal assets, or
those real properties in the name of Jesus Chua Garcia
only and those in which the conjugal partnership of gains
of the Petitioner Rosalie J. Garcia and respondent have
an interest in, especially the conjugal home located in
No. 14, Pitimini St., Capitolville Subdivision, Bacolod
City, and other properties which are conjugal assets or
those in which the conjugal partnership of gains of
Petitioner Rosalie J. Garcia and the respondent have an
interest in and listed in Annexes "I," "I-1," and "I-2,"
including properties covered by TCT Nos. T-186325 and
T-168814;
9) Ordered that the Register of Deeds of Bacolod City
and E.B. Magalona shall be served a copy of this
TEMPORARY PROTECTION ORDER and are ordered
not to allow the transfer, sale, encumbrance or
disposition of these above-cited properties to any
person, entity or corporation without the personal
presence of petitioner Rosalie J. Garcia, who shall affix
her signature in the presence of the Register of Deeds,
due to the fear of petitioner Rosalie that her signature
will be forged in order to effect the encumbrance or sale
of these properties to defraud her or the conjugal
partnership of gains.
In its Order29 dated September 26, 2006, the trial court
extended the aforequoted TPO for another ten (10)
days, and gave petitioner a period of five (5) days within

which to show cause why the TPO should not be

renewed, extended, or modified. Upon petitioner's
manifestation,30 however, that he has not received a
copy of private respondent's motion to modify/renew the
TPO, the trial court directed in its Order31 dated October
6, 2006 that petitioner be furnished a copy of said
motion. Nonetheless, an Order32 dated a day earlier,
October 5, had already been issued renewing the TPO
dated August 23, 2006. The pertinent portion is quoted
hereunder:
x x x it appearing further that the hearing could not yet
be finally terminated, the Temporary Protection Order
issued on August 23, 2006 is hereby renewed and
extended for thirty (30) days and continuously extended
and renewed for thirty (30) days, after each expiration,
until further orders, and subject to such modifications as
may be ordered by the court.
After having received a copy of the foregoing Order,
petitioner no longer submitted the required comment to
private respondent's motion for renewal of the TPO
arguing that it would only be an "exercise in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner
filed before the Court of Appeals (CA) a petition34 for
prohibition (CA-G.R. CEB-SP. No. 01698), with prayer
for injunction and temporary restraining order,
challenging (1) the constitutionality of R.A. 9262 for
being violative of the due process and the equal
protection clauses, and (2) the validity of the modified
TPO issued in the civil case for being "an unwanted
product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day
Temporary Restraining Order36 (TRO) against the
enforcement of the TPO, the amended TPOs and other
orders pursuant thereto.
Subsequently, however, on January 24, 2007, the
appellate court dismissed36 the petition for failure of
petitioner to raise the constitutional issue in his
pleadings before the trial court in the civil case, which is
clothed with jurisdiction to resolve the same. Secondly,
the challenge to the validity of R.A. 9262 through a
petition for prohibition seeking to annul the protection
orders issued by the trial court constituted a collateral
attack on said law.
His motion for reconsideration of the foregoing Decision
having been denied in the Resolution37 dated August
14, 2007, petitioner is now before us alleging that
The Issues
I. THE COURT OF APPEALS ERRED IN DISMISSING
THE PETITION ON THE THEORY THAT THE ISSUE
OF CONSTITUTIONALITY WAS NOT RAISED AT THE
EARLIEST OPPORTUNITY AND THAT, THE PETITION
CONSTITUTES A COLLATERAL ATTACK ON THE
VALIDITY OF THE LAW.

II. THE COURT OF APPEALS COMMITTED SERIOUS

ERROR IN FAILING TO CONCLUDE THAT R.A. 9262
IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF
THE EQUAL PROTECTION CLAUSE.
III. THE COURT OF APPEALS COMMITTED GRAVE
MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS
COUNTER TO THE DUE PROCESS CLAUSE OF THE
CONSTITUTION.
IV. THE COURT OF APPEALS ERRED IN NOT
FINDING THAT THE LAW DOES VIOLENCE TO THE
POLICY OF THE STATE TO PROTECT THE FAMILY AS
A BASIC SOCIAL INSTITUTION.
V. THE COURT OF APPEALS SERIOUSLY ERRED IN
NOT DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN
UNDUE DELEGATION OF JUDICIAL POWER TO THE
BARANGAY OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by
petitioner against the constitutionality of R.A. 9262, we
shall first tackle the propriety of the dismissal by the
appellate court of the petition for prohibition (CA-G.R.
CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must
be raised at the earliest opportunity so that if not raised
in the pleadings, ordinarily it may not be raised in the
trial, and if not raised in the trial court, it will not be
considered on appeal.39 Courts will not anticipate a
question of constitutional law in advance of the necessity
of deciding it.40
In defending his failure to attack the constitutionality of
R.A. 9262 before the RTC of Bacolod City, petitioner
argues that the Family Court has limited authority and
jurisdiction that is "inadequate to tackle the complex
issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider
the constitutionality of a statute.
At the outset, it must be stressed that Family Courts are
special courts, of the same level as Regional Trial
Courts. Under R.A. 8369, otherwise known as the
"Family Courts Act of 1997," family courts have exclusive
original jurisdiction to hear and decide cases of domestic
violence against women and children.42 In accordance
with said law, the Supreme Court designated from
among the branches of the Regional Trial Courts at least
one Family Court in each of several key cities
identified.43 To achieve harmony with the first mentioned
law, Section 7 of R.A. 9262 now provides that Regional
Trial Courts designated as Family Courts shall have
original and exclusive jurisdiction over cases of VAWC
defined under the latter law, viz:

SEC. 7. Venue. The Regional Trial Court designated

as a Family Court shall have original and exclusive
jurisdiction over cases of violence against women and
their children under this law. In the absence of such
court in the place where the offense was committed, the
case shall be filed in the Regional Trial Court where the
crime or any of its elements was committed at the option
of the complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of
Bacolod City remains possessed of authority as a court
of general original jurisdiction to pass upon all kinds of
cases whether civil, criminal, special proceedings, land
registration, guardianship, naturalization, admiralty or
insolvency.44 It is settled that RTCs have jurisdiction to
resolve the constitutionality of a statute,45 "this authority
being embraced in the general definition of the judicial
power to determine what are the valid and binding laws
by the criterion of their conformity to the fundamental
law."46 The Constitution vests the power of judicial
review or the power to declare the constitutionality or
validity of a law, treaty, international or executive
agreement, presidential decree, order, instruction,
ordinance, or regulation not only in this Court, but in all
RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48
that, "plainly the Constitution contemplates that the
inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of
appellate review of final judgments of inferior courts in
cases where such constitutionality happens to be in
issue." Section 5, Article VIII of the 1987 Constitution
reads in part as follows:
SEC. 5. The Supreme Court shall have the following
powers:
2. Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide,
final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of
any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
Thus, contrary to the posturing of petitioner, the issue of
constitutionality of R.A. 9262 could have been raised at
the earliest opportunity in his Opposition to the petition
for protection order before the RTC of Bacolod City,
which had jurisdiction to determine the same, subject to
the review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on
Violence Against Women and Their Children, lays down
a new kind of procedure requiring the respondent to file
an opposition to the petition and not an answer.49 Thus:
SEC. 20. Opposition to petition. (a) The respondent
may file an opposition to the petition which he himself
shall verify. It must be accompanied by the affidavits of
witnesses and shall show cause why a temporary or
permanent protection order should not be issued.
(b) Respondent shall not include in the opposition any
counterclaim, cross-claim or third-party complaint, but

any cause of action which could be the subject thereof

may be litigated in a separate civil action. (Emphasis
supplied)
We cannot subscribe to the theory espoused by
petitioner that, since a counterclaim, cross-claim and
third-party complaint are to be excluded from the
opposition, the issue of constitutionality cannot likewise
be raised therein. A counterclaim is defined as any claim
for money or other relief which a defending party may
have against an opposing party.50 A cross-claim, on the
other hand, is any claim by one party against a co-party
arising out of the transaction or occurrence that is the
subject matter either of the original action or of a
counterclaim therein.51 Finally, a third-party complaint is
a claim that a defending party may, with leave of court,
file against a person not a party to the action for
contribution, indemnity, subrogation or any other relief, in
respect of his opponent's claim.52 As pointed out by
Justice Teresita J. Leonardo-De Castro, the
unconstitutionality of a statute is not a cause of action
that could be the subject of a counterclaim, cross-claim
or a third-party complaint. Therefore, it is not prohibited
from being raised in the opposition in view of the familiar
maxim expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the
resolution of the case a quo because the right of private
respondent to a protection order is founded solely on the
very statute the validity of which is being attacked53 by
petitioner who has sustained, or will sustain, direct injury
as a result of its enforcement. The alleged
unconstitutionality of R.A. 9262 is, for all intents and
purposes, a valid cause for the non-issuance of a
protection order.
That the proceedings in Civil Case No. 06-797 are
summary in nature should not have deterred petitioner
from raising the same in his Opposition. The question
relative to the constitutionality of a statute is one of law
which does not need to be supported by evidence.54 Be
that as it may, Section 25 of A.M. No. 04-10-11-SC
nonetheless allows the conduct of a hearing to
determine legal issues, among others, viz:
SEC. 25. Order for further hearing. - In case the court
determines the need for further hearing, it may issue an
order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have
been marked and will be presented;
(d) Names of witnesses who will be ordered to present
their direct testimonies in the form of affidavits; and
(e) Schedule of the presentation of evidence by both
parties which shall be done in one day, to the extent
possible, within the 30-day period of the effectivity of the
temporary protection order issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant

to the conduct of a hearing when necessary, Section 26
(b) of A.M. No. 04-10-11-SC provides that if a temporary
protection order issued is due to expire, the trial court
may extend or renew the said order for a period of thirty
(30) days each time until final judgment is rendered. It
may likewise modify the extended or renewed temporary
protection order as may be necessary to meet the needs
of the parties. With the private respondent given ample
protection, petitioner could proceed to litigate the
constitutional issues, without necessarily running afoul of
the very purpose for the adoption of the rules on
summary procedure.
In view of all the foregoing, the appellate court correctly
dismissed the petition for prohibition with prayer for
injunction and temporary restraining order (CA-G.R.
CEB - SP. No. 01698). Petitioner may have proceeded
upon an honest belief that if he finds succor in a superior
court, he could be granted an injunctive relief. However,
Section 22(j) of A.M. No. 04-10-11-SC expressly
disallows the filing of a petition for certiorari, mandamus
or prohibition against any interlocutory order issued by
the trial court. Hence, the 60-day TRO issued by the
appellate court in this case against the enforcement of
the TPO, the amended TPOs and other orders pursuant
thereto was improper, and it effectively hindered the
case from taking its normal course in an expeditious and
summary manner.
As the rules stand, a review of the case by appeal or
certiorari before judgment is prohibited. Moreover, if the
appeal of a judgment granting permanent protection
shall not stay its enforcement,55 with more reason that a
TPO, which is valid only for thirty (30) days at a time,56
should not be enjoined.
The mere fact that a statute is alleged to be
unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined.57 In Younger v.
Harris, Jr.,58 the Supreme Court of the United States
declared, thus:
Federal injunctions against state criminal statutes, either
in their entirety or with respect to their separate and
distinct prohibitions, are not to be granted as a matter of
course, even if such statutes are unconstitutional. No
citizen or member of the community is immune from
prosecution, in good faith, for his alleged criminal acts.
The imminence of such a prosecution even though
alleged to be unauthorized and, hence, unlawful is not
alone ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable injury to
the plaintiff who seeks its aid. (Citations omitted)
The sole objective of injunctions is to preserve the status
quo until the trial court hears fully the merits of the case.
It bears stressing, however, that protection orders are
granted ex parte so as to protect women and their
children from acts of violence. To issue an injunction
against such orders will defeat the very purpose of the
law against VAWC.

Notwithstanding all these procedural flaws, we shall not

shirk from our obligation to determine novel issues, or
issues of first impression, with far-reaching implications.
We have, time and again, discharged our solemn duty
as final arbiter of constitutional issues, and with more
reason now, in view of private respondent's plea in her
Comment59 to the instant Petition that we should put the
challenge to the constitutionality of R.A. 9262 to rest.
And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to
prevent and criminalize spousal and child abuse, which
could very well be committed by either the husband or
the wife, gender alone is not enough basis to deprive the
husband/father of the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill
No. 2723,61 which became R.A. 9262, reveals that while
the sponsor, Senator Luisa Pimentel-Ejercito (better
known as Senator Loi Estrada), had originally proposed
what she called a "synthesized measure"62 an
amalgamation of two measures, namely, the "AntiDomestic Violence Act" and the "Anti-Abuse of Women
in Intimate Relationships Act"63 providing protection to
"all family members, leaving no one in isolation" but at
the same time giving special attention to women as the
"usual victims" of violence and abuse,64 nonetheless, it
was eventually agreed that men be denied protection
under the same measure.

It is settled that courts are not concerned

with the wisdom, justice, policy, or
expediency of a statute.67 Hence, we dare
not venture into the real motivations and
wisdom of the members of Congress in
limiting the protection against violence and
abuse under R.A. 9262 to women and
children only. No proper challenge on said
grounds may be entertained in this
proceeding. Congress has made its choice
and it is not our prerogative to supplant this
judgment. The choice may be perceived as
erroneous but even then, the remedy against
it is to seek its amendment or repeal by the
legislative. By the principle of separation of
powers, it is the legislative that determines
the necessity, adequacy, wisdom and
expediency of any law.68 We only step in
when there is a violation of the Constitution.
However, none was sufficiently shown in this
case.
R.A. 9262 does not violate the guaranty of
equal protection of the laws.
Equal protection simply requires that all
persons or things similarly situated should be
treated alike, both as to rights conferred and
responsibilities imposed. The oft-repeated

disquisition in the early case of Victoriano v.

Elizalde Rope Workers' Union69 is instructive:
The guaranty of equal protection of the laws
is not a guaranty of equality in the
application of the laws upon all citizens of
the state. It is not, therefore, a requirement,
in order to avoid the constitutional
prohibition against inequality, that every
man, woman and child should be affected
alike by a statute. Equality of operation of
statutes does not mean indiscriminate
operation on persons merely as such, but on
persons according to the circumstances
surrounding them. It guarantees equality, not
identity of rights. The Constitution does not
require that things which are different in fact
be treated in law as though they were the
same. The equal protection clause does not
forbid discrimination as to things that are
different. It does not prohibit legislation
which is limited either in the object to which
it is directed or by the territory within which
it is to operate.
The equal protection of the laws clause of
the Constitution allows classification.
Classification in law, as in the other
departments of knowledge or practice, is the
grouping of things in speculation or practice
because they agree with one another in
certain particulars. A law is not invalid
because of simple inequality. The very idea
of classification is that of inequality, so that it
goes without saying that the mere fact of
inequality in no manner determines the
matter of constitutionality. All that is required
of a valid classification is that it be
reasonable, which means that the
classification should be based on substantial
distinctions which make for real differences;
that it must be germane to the purpose of
the law; that it must not be limited to
existing conditions only; and that it must
apply equally to each member of the class.
This Court has held that the standard is
satisfied if the classification or distinction is
based on a reasonable foundation or rational
basis and is not palpably arbitrary. (Emphasis
supplied)
Measured against the foregoing
jurisprudential yardstick, we find that R.A.
9262 is based on a valid classification as
shall hereinafter be discussed and, as such,
did not violate the equal protection clause by
favoring women over men as victims of

violence and abuse to whom the State

extends its protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between
women and men; the fact that women are
more likely than men to be victims of
violence; and the widespread gender bias
and prejudice against women all make for
real differences justifying the classification
under the law. As Justice McIntyre succinctly
states, "the accommodation of differences ...
is the essence of true equality."70
A. Unequal power relationship between men
and women
According to the Philippine Commission on
Women (the National Machinery for Gender
Equality and Women's Empowerment),
violence against women (VAW) is deemed to
be closely linked with the unequal power
relationship between women and men
otherwise known as "gender-based violence".
Societal norms and traditions dictate people
to think men are the leaders, pursuers,
providers, and take on dominant roles in
society while women are nurturers, men's
companions and supporters, and take on
subordinate roles in society. This perception
leads to men gaining more power over
women. With power comes the need to
control to retain that power. And VAW is a
form of men's expression of controlling
women to retain power.71
The United Nations, which has long
recognized VAW as a human rights issue,
passed its Resolution 48/104 on the
Declaration on Elimination of Violence
Against Women on December 20, 1993
stating that "violence against women is a
manifestation of historically unequal power
relations between men and women, which
have led to domination over and
discrimination against women by men and to
the prevention of the full advancement of
women, and that violence against women is
one of the crucial social mechanisms by
which women are forced into subordinate
positions, compared with men."72
Then Chief Justice Reynato S. Puno traced
the historical and social context of genderbased violence and developments in
advocacies to eradicate VAW, in his remarks
delivered during the Joint Launching of R.A.

9262 and its Implementing Rules last

October 27, 2004, the pertinent portions of
which are quoted hereunder:
History reveals that most societies
sanctioned the use of violence against
women. The patriarch of a family was
accorded the right to use force on members
of the family under his control. I quote the
early studies:
Traditions subordinating women have a long
history rooted in patriarchy the institutional
rule of men. Women were seen in virtually all
societies to be naturally inferior both
physically and intellectually. In ancient
Western societies, women whether slave,
concubine or wife, were under the authority
of men. In law, they were treated as
property.
The Roman concept of patria potestas
allowed the husband to beat, or even kill, his
wife if she endangered his property right
over her. Judaism, Christianity and other
religions oriented towards the patriarchal
family strengthened the male dominated
structure of society.
English feudal law reinforced the tradition of
male control over women. Even the eminent
Blackstone has been quoted in his
commentaries as saying husband and wife
were one and that one was the husband.
However, in the late 1500s and through the
entire 1600s, English common law began to
limit the right of husbands to chastise their
wives. Thus, common law developed the rule
of thumb, which allowed husbands to beat
their wives with a rod or stick no thicker than
their thumb.
In the later part of the 19th century, legal
recognition of these rights to chastise wives
or inflict corporeal punishment ceased. Even
then, the preservation of the family was
given more importance than preventing
violence to women.
The metamorphosis of the law on violence in
the United States followed that of the English
common law. In 1871, the Supreme Court of
Alabama became the first appellate court to
strike down the common law right of a
husband to beat his wife:
The privilege, ancient though it may be, to
beat one's wife with a stick, to pull her hair,
choke her, spit in her face or kick her about

the floor, or to inflict upon her like

indignities, is not now acknowledged by our
law... In person, the wife is entitled to the
same protection of the law that the husband
can invoke for himself.
As time marched on, the women's advocacy
movement became more organized. The
temperance leagues initiated it. These
leagues had a simple focus. They considered
the evils of alcoholism as the root cause of
wife abuse. Hence, they demonstrated and
picketed saloons, bars and their husbands'
other watering holes. Soon, however, their
crusade was joined by suffragette
movements, expanding the liberation
movement's agenda. They fought for
women's right to vote, to own property, and
more. Since then, the feminist movement
was on the roll.
The feminist movement exposed the private
invisibility of the domestic violence to the
public gaze. They succeeded in transforming
the issue into an important public concern.
No less than the United States Supreme
Court, in 1992 case Planned Parenthood v.
Casey, noted:
In an average 12-month period in this
country, approximately two million women
are the victims of severe assaults by their
male partners. In a 1985 survey, women
reported that nearly one of every eight
husbands had assaulted their wives during
the past year. The [American Medical
Association] views these figures as "marked
underestimates," because the nature of
these incidents discourages women from
reporting them, and because surveys
typically exclude the very poor, those who do
not speak English well, and women who are
homeless or in institutions or hospitals when
the survey is conducted. According to the
AMA, "researchers on family violence agree
that the true incidence of partner violence is
probably double the above estimates; or four
million severely assaulted women per year."
Studies on prevalence suggest that from
one-fifth to one-third of all women will be
physically assaulted by a partner or expartner during their lifetime... Thus on an
average day in the United States, nearly
11,000 women are severely assaulted by
their male partners. Many of these incidents
involve sexual assault... In families where

wife beating takes place, moreover, child

abuse is often present as well.
Other studies fill in the rest of this troubling
picture. Physical violence is only the most
visible form of abuse. Psychological abuse,
particularly forced social and economic
isolation of women, is also common.
Many victims of domestic violence remain
with their abusers, perhaps because they
perceive no superior alternative...Many
abused women who find temporary refuge in
shelters return to their husbands, in large
part because they have no other source of
income... Returning to one's abuser can be
dangerous. Recent Federal Bureau of
Investigation statistics disclose that 8.8
percent of all homicide victims in the United
States are killed by their spouses...Thirty
percent of female homicide victims are killed
by their male partners.
Finally in 1994, the United States Congress
enacted the Violence Against Women Act.
In the International front, the women's
struggle for equality was no less successful.
The United States Charter and the Universal
Declaration of Human Rights affirmed the
equality of all human beings. In 1979, the UN
General Assembly adopted the landmark
Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW). In
1993, the UN General Assembly also adopted
the Declaration on the Elimination of
Violence Against Women. World conferences
on the role and rights of women have been
regularly held in Mexico City, Copenhagen,
Nairobi and Beijing. The UN itself established
a Commission on the Status of Women.
The Philippines has been in cadence with the
half and full steps of all these women's
movements. No less than Section 14, Article
II of our 1987 Constitution mandates the
State to recognize the role of women in
nation building and to ensure the
fundamental equality before the law of
women and men. Our Senate has ratified the
CEDAW as well as the Convention on the
Rights of the Child and its two protocols. To
cap it all, Congress, on March 8, 2004,
enacted Rep. Act No. 9262, entitled "An Act
Defining Violence Against Women and Their
Children, Providing for Protective Measures
for Victims, Prescribing Penalties therefor and
for other Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.
At the time of the presentation of Senate Bill
No. 2723, official statistics on violence
against women and children show that
x x x physical injuries had the highest
number of cases at 5,058 in 2002
representing 55.63% of total cases reported
(9,903). And for the first semester of 2003,
there were 2,381 reported cases out of 4,354
cases which represent 54.31%. xxx (T)he
total number of women in especially difficult
circumstances served by the Department of
Social Welfare and Development (DSWD) for
the year 2002, there are 1,417 physically
abused/maltreated cases out of the total of
5,608 cases. xxx (T)here are 1,091 DSWD
cases out of a total number of 3,471 cases
for the first semester of 2003. Female
violence comprised more than 90% of all
forms of abuse and violence and more than
90% of these reported cases were committed
by the women's intimate partners such as
their husbands and live-in partners.
On the other hand, no reliable estimates may
be obtained on domestic abuse and violence
against men in the Philippines because
incidents thereof are relatively low and,
perhaps, because many men will not even
attempt to report the situation. In the United
Kingdom, 32% of women who had ever
experienced domestic violence did so four or
five (or more) times, compared with 11% of
the smaller number of men who had ever
experienced domestic violence; and women
constituted 89% of all those who had
experienced 4 or more incidents of domestic
violence.75 Statistics in Canada show that
spousal violence by a woman against a man
is less likely to cause injury than the other
way around (18 percent versus 44 percent).
Men, who experience violence from their
spouses are much less likely to live in fear of
violence at the hands of their spouses, and
much less likely to experience sexual assault.
In fact, many cases of physical violence by a
woman against a spouse are in self-defense
or the result of many years of physical or
emotional abuse.76
While there are, indeed, relatively few cases
of violence and abuse perpetrated against
men in the Philippines, the same cannot
render R.A. 9262 invalid.

In a 1960 case involving the violation of a

city ordinance requiring drivers of animaldrawn vehicles to pick up, gather and
deposit in receptacles the manure emitted or
discharged by their vehicle-drawing animals
in any public highways, streets, plazas, parks
or alleys, said ordinance was challenged as
violative of the guaranty of equal protection
of laws as its application is limited to owners
and drivers of vehicle-drawing animals and
not to those animals, although not utilized,
but similarly pass through the same streets.
The ordinance was upheld as a valid
classification for the reason that, while there
may be non-vehicle-drawing animals that
also traverse the city roads, "but their
number must be negligible and their
appearance therein merely occasional,
compared to the rig-drawing ones, as not to
constitute a menace to the health of the
community."77 The mere fact that the
legislative classification may result in actual
inequality is not violative of the right to
equal protection, for every classification of
persons or things for regulation by law
produces inequality in some degree, but the
law is not thereby rendered invalid.78
C. Gender bias and prejudices
From the initial report to the police through
prosecution, trial, and sentencing, crimes
against women are often treated differently
and less seriously than other crimes. This
was argued by then United States Senator
Joseph R. Biden, Jr., now Vice President, chief
sponsor of the Violence Against Women Act
(VAWA), in defending the civil rights remedy
as a valid exercise of the U.S. Congress'
authority under the Commerce and Equal
Protection Clauses. He stressed that the
widespread gender bias in the U.S. has
institutionalized historic prejudices against
victims of rape or domestic violence,
subjecting them to "double victimization"
first at the hands of the offender and then of
the legal system.79
Our own Senator Loi Estrada lamented in her
Sponsorship Speech for Senate Bill No. 2723
that "(w)henever violence occurs in the
family, the police treat it as a private matter
and advise the parties to settle the conflict
themselves. Once the complainant brings the
case to the prosecutor, the latter is hesitant
to file the complaint for fear that it might
later be withdrawn. This lack of response or

reluctance to be involved by the police and

prosecution reinforces the escalating,
recurring and often serious nature of
domestic violence."80
Sadly, our own courts, as well, have
exhibited prejudices and biases against our
women.
In a recent case resolved on March 9, 2011,
we fined RTC Judge Venancio J. Amila for
Conduct Unbecoming of a Judge. He used
derogatory and irreverent language in
reference to the complainant in a petition for
TPO and PPO under R.A. 9262, calling her as
"only a live-in partner" and presenting her as
an "opportunist" and a "mistress" in an
"illegitimate relationship." Judge Amila even
called her a "prostitute," and accused her of
being motivated by "insatiable greed" and of
absconding with the contested property.81
Such remarks betrayed Judge Amila's
prejudices and lack of gender sensitivity.
The enactment of R.A. 9262 aims to address
the discrimination brought about by biases
and prejudices against women. As
emphasized by the CEDAW Committee on
the Elimination of Discrimination against
Women, addressing or correcting
discrimination through specific measures
focused on women does not discriminate
against men.82 Petitioner's contention,83
therefore, that R.A. 9262 is discriminatory
and that it is an "anti-male," "husbandbashing," and "hate-men" law deserves scant
consideration. As a State Party to the
CEDAW, the Philippines bound itself to take
all appropriate measures "to modify the
social and cultural patterns of conduct of
men and women, with a view to achieving
the elimination of prejudices and customary
and all other practices which are based on
the idea of the inferiority or the superiority of
either of the sexes or on stereotyped roles
for men and women."84 Justice Puno
correctly pointed out that "(t)he paradigm
shift changing the character of domestic
violence from a private affair to a public
offense will require the development of a
distinct mindset on the part of the police, the
prosecution and the judges."85

is to address violence committed against

women and children, spelled out in its
Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. It is hereby
declared that the State values the dignity of
women and children and guarantees full
respect for human rights. The State also
recognizes the need to protect the family
and its members particularly women and
children, from violence and threats to their
personal safety and security.
Towards this end, the State shall exert efforts
to address violence committed against
women and children in keeping with the
fundamental freedoms guaranteed under the
Constitution and the provisions of the
Universal Declaration of Human Rights, the
Convention on the Elimination of All Forms of
Discrimination Against Women, Convention
on the Rights of the Child and other
international human rights instruments of
which the Philippines is a party.
In 1979, the U.N. General Assembly adopted
the CEDAW, which the Philippines ratified on
August 5, 1981. Subsequently, the Optional
Protocol to the CEDAW was also ratified by
the Philippines on October 6, 2003.86 This
Convention mandates that State parties shall
accord to women equality with men before
the law87 and shall take all appropriate
measures to eliminate discrimination against
women in all matters relating to marriage
and family relations on the basis of equality
of men and women.88 The Philippines
likewise ratified the Convention on the Rights
of the Child and its two protocols.89 It is,
thus, bound by said Conventions and their
respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all
members
Moreover, the application of R.A. 9262 is not
limited to the existing conditions when it was
promulgated, but to future conditions as
well, for as long as the safety and security of
women and their children are threatened by
violence and abuse.

II. The classification is germane to the

purpose of the law.

R.A. 9262 applies equally to all women and

children who suffer violence and abuse.
Section 3 thereof defines VAWC as:

The distinction between men and women is

germane to the purpose of R.A. 9262, which

x x x any act or a series of acts committed

by any person against a woman who is his

wife, former wife, or against a woman with

whom the person has or had a sexual or
dating relationship, or with whom he has a
common child, or against her child whether
legitimate or illegitimate, within or without
the family abode, which result in or is likely
to result in physical, sexual, psychological
harm or suffering, or economic abuse
including threats of such acts, battery,
assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not
limited to, the following acts:

D. "Economic abuse" refers to acts that make

or attempt to make a woman financially
dependent which includes, but is not limited
to the following:

A. "Physical Violence" refers to acts that

include bodily or physical harm;

2. deprivation or threat of deprivation of

financial resources and the right to the use
and enjoyment of the conjugal, community
or property owned in common;

B. "Sexual violence" refers to an act which is

sexual in nature, committed against a
woman or her child. It includes, but is not
limited to:
a) rape, sexual harassment, acts of
lasciviousness, treating a woman or her child
as a sex object, making demeaning and
sexually suggestive remarks, physically
attacking the sexual parts of the victim's
body, forcing her/him to watch obscene
publications and indecent shows or forcing
the woman or her child to do indecent acts
and/or make films thereof, forcing the wife
and mistress/lover to live in the conjugal
home or sleep together in the same room
with the abuser;
b) acts causing or attempting to cause the
victim to engage in any sexual activity by
force, threat of force, physical or other harm
or threat of physical or other harm or
coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or
omissions causing or likely to cause mental
or emotional suffering of the victim such as
but not limited to intimidation, harassment,
stalking, damage to property, public ridicule
or humiliation, repeated verbal abuse and
marital infidelity. It includes causing or
allowing the victim to witness the physical,
sexual or psychological abuse of a member
of the family to which the victim belongs, or
to witness pornography in any form or to
witness abusive injury to pets or to unlawful
or unwanted deprivation of the right to
custody and/or visitation of common
children.

1. withdrawal of financial support or

preventing the victim from engaging in any
legitimate profession, occupation, business
or activity, except in cases wherein the other
spouse/partner objects on valid, serious and
moral grounds as defined in Article 73 of the
Family Code;

3. destroying household property;

4. controlling the victims' own money or
properties or solely controlling the conjugal
money or properties.
It should be stressed that the acts
enumerated in the aforequoted provision are
attributable to research that has exposed the
dimensions and dynamics of battery. The
acts described here are also found in the
U.N. Declaration on the Elimination of
Violence Against Women.90 Hence, the
argument advanced by petitioner that the
definition of what constitutes abuse removes
the difference between violent action and
simple marital tiffs is tenuous.
There is nothing in the definition of VAWC
that is vague and ambiguous that will
confuse petitioner in his defense. The acts
enumerated above are easily understood and
provide adequate contrast between the
innocent and the prohibited acts. They are
worded with sufficient definiteness that
persons of ordinary intelligence can
understand what conduct is prohibited, and
need not guess at its meaning nor differ in its
application.91 Yet, petitioner insists92 that
phrases like "depriving or threatening to
deprive the woman or her child of a legal
right," "solely controlling the conjugal or
common money or properties," "marital
infidelity," and "causing mental or emotional
anguish" are so vague that they make every
quarrel a case of spousal abuse. However,
we have stressed that the "vagueness"
doctrine merely requires a reasonable degree
of certainty for the statute to be upheld not
absolute precision or mathematical

exactitude, as petitioner seems to suggest.

Flexibility, rather than meticulous specificity,
is permissible as long as the metes and
bounds of the statute are clearly delineated.
An act will not be held invalid merely
because it might have been more explicit in
its wordings or detailed in its provisions.93
There is likewise no merit to the contention
that R.A. 9262 singles out the husband or
father as the culprit. As defined above, VAWC
may likewise be committed "against a
woman with whom the person has or had a
sexual or dating relationship." Clearly, the
use of the gender-neutral word "person" who
has or had a sexual or dating relationship
with the woman encompasses even lesbian
relationships. Moreover, while the law
provides that the offender be related or
connected to the victim by marriage, former
marriage, or a sexual or dating relationship,
it does not preclude the application of the
principle of conspiracy under the Revised
Penal Code (RPC). Thus, in the case of Go-Tan
v. Spouses Tan,94 the parents-in-law of
Sharica Mari L. Go-Tan, the victim, were held
to be proper respondents in the case filed by
the latter upon the allegation that they and
their son (Go-Tan's husband) had community
of design and purpose in tormenting her by
giving her insufficient financial support;
harassing and pressuring her to be ejected
from the family home; and in repeatedly
abusing her verbally, emotionally, mentally
and physically.
R.A. 9262 is not violative of the due process
clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262,
specifically in the issuance of POs, of all
protections afforded by the due process
clause of the Constitution. Says he: "On the
basis of unsubstantiated allegations, and
practically no opportunity to respond, the
husband is stripped of family, property, guns,
money, children, job, future employment and
reputation, all in a matter of seconds,
without an inkling of what happened."95
A protection order is an order issued to
prevent further acts of violence against
women and their children, their family or
household members, and to grant other
necessary reliefs. Its purpose is to safeguard
the offended parties from further harm,
minimize any disruption in their daily life and

facilitate the opportunity and ability to regain

control of their life.96
"The scope of reliefs in protection orders is
broadened to ensure that the victim or
offended party is afforded all the remedies
necessary to curtail access by a perpetrator
to the victim. This serves to safeguard the
victim from greater risk of violence; to
accord the victim and any designated family
or household member safety in the family
residence, and to prevent the perpetrator
from committing acts that jeopardize the
employment and support of the victim. It
also enables the court to award temporary
custody of minor children to protect the
children from violence, to prevent their
abduction by the perpetrator and to ensure
their financial support."97
The rules require that petitions for protection
order be in writing, signed and verified by
the petitioner98 thereby undertaking full
responsibility, criminal or civil, for every
allegation therein. Since "time is of the
essence in cases of VAWC if further violence
is to be prevented,"99 the court is authorized
to issue ex parte a TPO after raffle but before
notice and hearing when the life, limb or
property of the victim is in jeopardy and
there is reasonable ground to believe that
the order is necessary to protect the victim
from the immediate and imminent danger of
VAWC or to prevent such violence, which is
about to recur.100
There need not be any fear that the judge
may have no rational basis to issue an ex
parte order. The victim is required not only to
verify the allegations in the petition, but also
to attach her witnesses' affidavits to the
petition.101
The grant of a TPO ex parte cannot,
therefore, be challenged as violative of the
right to due process. Just like a writ of
preliminary attachment which is issued
without notice and hearing because the time
in which the hearing will take could be
enough to enable the defendant to abscond
or dispose of his property,102 in the same
way, the victim of VAWC may already have
suffered harrowing experiences in the hands
of her tormentor, and possibly even death, if
notice and hearing were required before such
acts could be prevented. It is a constitutional
commonplace that the ordinary requirements
of procedural due process must yield to the

necessities of protecting vital public

interests,103 among which is protection of
women and children from violence and
threats to their personal safety and security.
It should be pointed out that when the TPO is
issued ex parte, the court shall likewise order
that notice be immediately given to the
respondent directing him to file an opposition
within five (5) days from service. Moreover,
the court shall order that notice, copies of
the petition and TPO be served immediately
on the respondent by the court sheriffs. The
TPOs are initially effective for thirty (30) days
from service on the respondent.104
Where no TPO is issued ex parte, the court
will nonetheless order the immediate
issuance and service of the notice upon the
respondent requiring him to file an
opposition to the petition within five (5) days
from service. The date of the preliminary
conference and hearing on the merits shall
likewise be indicated on the notice.105
The opposition to the petition which the
respondent himself shall verify, must be
accompanied by the affidavits of witnesses
and shall show cause why a temporary or
permanent protection order should not be
issued.106
It is clear from the foregoing rules that the
respondent of a petition for protection order
should be apprised of the charges imputed to
him and afforded an opportunity to present
his side. Thus, the fear of petitioner of being
"stripped of family, property, guns, money,
children, job, future employment and
reputation, all in a matter of seconds,
without an inkling of what happened" is a
mere product of an overactive imagination.
The essence of due process is to be found in
the reasonable opportunity to be heard and
submit any evidence one may have in
support of one's defense. "To be heard" does
not only mean verbal arguments in court;
one may be heard also through pleadings.
Where opportunity to be heard, either
through oral arguments or pleadings, is
accorded, there is no denial of procedural
due process.107
It should be recalled that petitioner filed on
April 26, 2006 an Opposition to the Urgent
Ex-Parte Motion for Renewal of the TPO that
was granted only two days earlier on April
24, 2006. Likewise, on May 23, 2006,

petitioner filed a motion for the modification

of the TPO to allow him visitation rights to his
children. Still, the trial court in its Order
dated September 26, 2006, gave him five
days (5) within which to show cause why the
TPO should not be renewed or extended. Yet,
he chose not to file the required comment
arguing that it would just be an "exercise in
futility," conveniently forgetting that the
renewal of the questioned TPO was only for a
limited period (30 days) each time, and that
he could prevent the continued renewal of
said order if he can show sufficient cause
therefor. Having failed to do so, petitioner
may not now be heard to complain that he
was denied due process of law.
Petitioner next laments that the removal and
exclusion of the respondent in the VAWC
case from the residence of the victim,
regardless of ownership of the residence, is
virtually a "blank check" issued to the wife to
claim any property as her conjugal home.108
The wording of the pertinent rule, however,
does not by any stretch of the imagination
suggest that this is so. It states:
SEC. 11. Reliefs available to the offended
party. -- The protection order shall include
any, some or all of the following reliefs:
(c) Removing and excluding the respondent
from the residence of the offended party,
regardless of ownership of the residence,
either temporarily for the purpose of
protecting the offended party, or
permanently where no property rights are
violated. If the respondent must remove
personal effects from the residence, the
court shall direct a law enforcement agent to
accompany the respondent to the residence,
remain there until the respondent has
gathered his things and escort him from the
residence;
Indubitably, petitioner may be removed and
excluded from private respondent's
residence, regardless of ownership, only
temporarily for the purpose of protecting the
latter. Such removal and exclusion may be
permanent only where no property rights are
violated. How then can the private
respondent just claim any property and
appropriate it for herself, as petitioner seems
to suggest?

The non-referral of a VAWC case to a

mediator is justified.
Petitioner argues that "by criminalizing runof-the-mill arguments, instead of
encouraging mediation and counseling, the
law has done violence to the avowed policy
of the State to "protect and strengthen the
family as a basic autonomous social
institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC,
the court shall not refer the case or any issue
thereof to a mediator. The reason behind this
provision is well-explained by the
Commentary on Section 311 of the Model
Code on Domestic and Family Violence as
follows:110
This section prohibits a court from ordering
or referring parties to mediation in a
proceeding for an order for protection.
Mediation is a process by which parties in
equivalent bargaining positions voluntarily
reach consensual agreement about the issue
at hand. Violence, however, is not a subject
for compromise. A process which involves
parties mediating the issue of violence
implies that the victim is somehow at fault.
In addition, mediation of issues in a
proceeding for an order of protection is
problematic because the petitioner is
frequently unable to participate equally with
the person against whom the protection
order has been sought. (Emphasis supplied)
There is no undue delegation of judicial
power to barangay officials.
Petitioner contends that protection orders
involve the exercise of judicial power which,
under the Constitution, is placed upon the
"Supreme Court and such other lower courts
as may be established by law" and, thus,
protests the delegation of power to barangay
officials to issue protection orders.111 The
pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs);
Who May Issue and How. Barangay
Protection Orders (BPOs) refer to the
protection order issued by the Punong
Barangay ordering the perpetrator to desist
from committing acts under Section 5 (a)
and (b) of this Act.1wphi1 A Punong
Barangay who receives applications for a
BPO shall issue the protection order to the
applicant on the date of filing after ex parte

determination of the basis of the application.

If the Punong Barangay is unavailable to act
on the application for a BPO, the application
shall be acted upon by any available
Barangay Kagawad. If the BPO is issued by a
Barangay Kagawad, the order must be
accompanied by an attestation by the
Barangay Kagawad that the Punong
Barangay was unavailable at the time of the
issuance of the BPO. BPOs shall be effective
for fifteen (15) days. Immediately after the
issuance of an ex parte BPO, the Punong
Barangay or Barangay Kagawad shall
personally serve a copy of the same on the
respondent, or direct any barangay official to
effect its personal service.
The parties may be accompanied by a nonlawyer advocate in any proceeding before
the Punong Barangay.
Judicial power includes the duty of the courts
of justice to settle actual controversies
involving rights which are legally
demandable and enforceable, and to
determine whether or not there has been a
grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any
branch or instrumentality of the
Government.112 On the other hand,
executive power "is generally defined as the
power to enforce and administer the laws. It
is the power of carrying the laws into
practical operation and enforcing their due
observance."113
As clearly delimited by the aforequoted
provision, the BPO issued by the Punong
Barangay or, in his unavailability, by any
available Barangay Kagawad, merely orders
the perpetrator to desist from (a) causing
physical harm to the woman or her child; and
(2) threatening to cause the woman or her
child physical harm. Such function of the
Punong Barangay is, thus, purely executive
in nature, in pursuance of his duty under the
Local Government Code to "enforce all laws
and ordinances," and to "maintain public
order in the barangay."114
We have held that "(t)he mere fact that an
officer is required by law to inquire into the
existence of certain facts and to apply the
law thereto in order to determine what his
official conduct shall be and the fact that
these acts may affect private rights do not
constitute an exercise of judicial powers."115

In the same manner as the public prosecutor

ascertains through a preliminary inquiry or
proceeding "whether there is reasonable
ground to believe that an offense has been
committed and the accused is probably
guilty thereof," the Punong Barangay must
determine reasonable ground to believe that
an imminent danger of violence against the
woman and her children exists or is about to
recur that would necessitate the issuance of
a BPO. The preliminary investigation
conducted by the prosecutor is, concededly,
an executive, not a judicial, function. The
same holds true with the issuance of a BPO.
We need not even belabor the issue raised
by petitioner that since barangay officials
and other law enforcement agencies are
required to extend assistance to victims of
violence and abuse, it would be very unlikely
that they would remain objective and
impartial, and that the chances of acquittal
are nil. As already stated, assistance by
barangay officials and other law enforcement
agencies is consistent with their duty to
enforce the law and to maintain peace and
order.
Conclusion
Before a statute or its provisions duly
challenged are voided, an unequivocal
breach of, or a clear conflict with the
Constitution, not merely a doubtful or
argumentative one, must be demonstrated in
such a manner as to leave no doubt in the
mind of the Court. In other words, the
grounds for nullity must be beyond
reasonable doubt.116 In the instant case,
however, no concrete evidence and
convincing arguments were presented by
petitioner to warrant a declaration of the
unconstitutionality of R.A. 9262, which is an
act of Congress and signed into law by the
highest officer of the co-equal executive
department. As we said in Estrada v.
Sandiganbayan, 117 courts must assume
that the legislature is ever conscious of the
borders and edges of its plenary powers, and
passed laws with full knowledge of the facts
and for the purpose of promoting what is
right and advancing the welfare of the
majority.
We reiterate here Justice Puno's observation
that "the history of the women's movement
against domestic violence shows that one of
its most difficult struggles was the fight

against the violence of law itself. If we keep

that in mind, law will not again be a
hindrance to the struggle of women for
equality but will be its fulfillment."118
Accordingly, the constitutionality of R.A.
9262 is, as it should be, sustained.
WHEREFORE, the instant petition for review
on certiorari is hereby DENIED for lack of
merit.
SO ORDERED.

AMELIA AQUINO, RODOLFO TAGGUEG,

JR.,* ADELAIDA HERNANDEZ and
LEOPOLDO BISCOCHO, JR., Petitioners,
vs. PHILIPPINE PORTS AUTHORITY,
Respondent.
Before this Court is a Petition for Review on
Certiorari1 under Rule 45 of the Rules of
Court praying that the Decision2 dated 29
August 2007 of the Court of Appeals (CA) in
CA-G.R. SP No. 91743 be set aside. In the
assailed decision, the CA reversed the 10
August 2005 Decision3 and 15 September
2005 Order4 of the Regional Trial Court
(RTC), Branch 55, Manila.
Background of the case
The Congress of the Philippines passed on 21
August 19895 Republic Act (R.A.) No. 6758
entitled "An Act Prescribing a Revised
Compensation and Position Classification in
the Government and for Other Purposes"
otherwise known as The Salary
Standardization Law.
Before the law, or on 31 August 1979, then
President Ferdinand E. Marcos issued Letter
of Implementation No. 97 (LOI No. 97),
authorizing the implementation of standard
compensation position classification plans for
the infrastructure/utilities group of
government-owned or controlled
corporations. On the basis thereof, the
Philippine Ports Authority (PPA) issued
Memorandum Circular No. 57-87 dated 1
October 1987 which granted to its officials
holding managerial and supervisory positions
representation and transportation allowance
(RATA) in an amount equivalent to 40% of
their basic salary.6
Thereafter, on 23 October 1989, PPA issued
Memorandum Circular No. 36-89, which

extended the RATA entitlement to its Section

Chiefs or heads of equivalent units, Terminal
Supervisors and senior personnel at the rate
of 20% of their basic pay.7 And, on 14
November 1990, PPA issued Memorandum
Circular No. 46-90, which adjusted effective 1
January 1990, the RATA authorized under
Memorandum Circular No. 36-89, from 20%
to 40% based on the standardized salary
rate.8
The continued validity of the RATA grant to
the maximum ceiling of 40% of basic pay
finds support from the Opinions9 rendered
by the Office of the Government Corporate
Counsel (OGCC), Department of Justice.
Finding justification in the increase in salary
due these officials brought about by the
standardization mandated by R.A. No. 6758,
PPA paid RATA differentials to its officials.
The Commission on Audit (COA) Corporate
Auditor, however, in a letter dated 14
November 1990, addressed to PPA,
disallowed in post-audit the payment of the
RATA differentials. It likewise disallowed in
audit the grant of RATA to PPA Section Chiefs
or heads of equivalent units, Terminal
Supervisors and senior personnel occupying
positions with salary grades of 17 and above
who were appointed after the effectivity of
R.A. No. 6758.
The COA called PPAs attention to
Memorandum No. 90-679 dated 30 October
1990 which provides that "LOImp No. 97
series of 1979 implementing Compensation
and Position Classification for
Infrastructure/Utilities for GOCC is replaced
by Section 16 of R.A. No. 6758."10
In view of the disallowances, the affected
PPA officials, represented by the OGCC, filed
a petition before the Supreme Court claiming
their entitlement to the RATA provided for
under LOI No. 97. The case was docketed as
G.R. No. 100773 entitled "Philippine Ports
Authority v. Commission on Audit, et al."11
In a decision dated 16 October 1992, the
Supreme Court ruled in favor of the COA and
declared that an official to be entitled to the
continued RATA benefit under LOI No. 97
must be an incumbent as of 1 July 1989 and
more importantly, was receiving the RATA
provided by LOI No. 97 as of 1 July 1989.

As a result of the aforesaid ruling, there are

at present two categories of managers and
supervisors at the PPA. The first category is
composed of PPA officials who were
occupying their positions and actually
receiving the 40% RATA under LOI No. 97 as
of 1 July 1989 and who continue to receive
such benefit. The second category consists
of officials who were not incumbents as of 1
July 1989 or were appointed or promoted to
their positions only after 1 July 1989. The
second category officials therefore receive a
lesser RATA under the General Appropriations
Act although they hold the same rank, title
and may have the same responsibilities as
their counterparts in the first category.
The Case
On 26 July 2000, petitioners, who are second
category PPA officials filed a Petition for
Mandamus and Prohibition before the RTC of
Manila, raffled to Branch 55. They claim
anew that they are entitled to RATA in the
amount not exceeding 40% of their
respective basic salaries. They anchor their
petition on recent developments allegedly
brought about by the decision of the
Supreme Court in the case of De Jesus v.
Commission on Audit, et al.12 which was
decided almost six (6) years after the Courts
decision in PPA v. COA, et al.13 They further
claim that certain issuances were released
by the COA and the Department of Budget
and Management (DBM), which in effect,
extended the cut-off date in the grant of the
40% RATA, thus entitling them to these
benefits.
PPA filed a motion to dismiss on the ground
of res judicata under paragraph (f), Rule 16
of the Rules of Court. It argued that a case
involving the same parties, subject matter
and cause of action had already been
resolved by this Court in PPA v. COA, et al.14
Finding merit in PPAs motion, the RTC
ordered the dismissal of the petition in an
Order dated 8 November 2000. The
dispositive portion of the Order reads:
WHEREFORE, premises considered, the
Motion to Dismiss is hereby GRANTED, and
the Petition in this case is hereby DISMISSED
on the ground that it is already barred by the
principle of res judicata.15

Petitioners elevated the case before the

Supreme Court by way of appeal under Rule
45 of the Rules of Court. The Supreme Court,
however, in a Resolution16 dated 28 March
2001 referred the case to the CA for
appropriate action. The case was docketed
as CA G.R. SP No. 64702.

PPA v. COA, et al. case have established a

clear legal right to claim the 40% RATA under
LOI No. 97 commencing on 23 October 2001,
and the correlative legal duty of respondent
PPA to pay the same; thus, entitling
petitioners who are qualified to avail of the
extraordinary remedy of mandamus."21

On 31 July 2002, a decision was rendered by

the CA on the referred case. It declared that
the principle of res judicata is not applicable
to the case. The appellate court explained
that the existence of DBM and COA issuances
which entitle herein petitioners to the grant
of RATA is the pertinent fact and condition
which is material to the instant case taking it
away from the domain of the principle of res
judicata.17 When new facts or conditions
intervene before the second suit, furnishing a
new basis for the claims and defenses of the
party, the issues are no longer the same;
hence, the former judgment cannot be
pleaded as a bar to the subsequent action.18
At the time judgment was rendered in the
previous case, the fact and condition now in
existence, which consist of the DBM and COA
issuances, has not yet come about. In view
of the issuances, petitioners are faced with
an entirely separate facts and conditions,
which make the principle of res judicata
inapplicable.19 The decision ordered the
remand of the case to the court of origin for
continuation of proceedings.

PPA raised the matter before the CA which

docketed the case as CA G.R. SP No. 91743.
In a decision dated 29 August 2007, the
appellate court reversed the decision of the
trial court and held:

After due proceedings in the trial court, a

decision in favor of petitioners was rendered
on 10 August 2005. The dispositive portion of
the decision commanded respondent PPA to
pay the claim for RATA equivalent to 40% of
petitioners standardized basic salaries
authorized under LOI No. 97, commencing
from their respective dates of appointments
or on 23 October 2001 when the case of
Irene V. Cruz, et al. v. COA20 was
promulgated by the Supreme Court,
whichever is later.
The trial court ratiocinated that "when the
Supreme Court En Banc ruled on 23 October
2001 in the IRENE CRUZ case that The date
of hiring of an employee cannot be
considered as a substantial distinction, the
so-called first (sic) category managers and
supervisors whose appointments thereto
were made after 01 July 1989 and who were
effectively deprived of the 40% RATA on
account of the Supreme Courts ruling in the

WHEREFORE, premises considered, the

August 10, 2005 Decision and the September
15, 2005 Order of the Regional Trial Court,
Branch 55, National Capital Judicial Region,
Manila, are hereby REVERSED. Accordingly,
the Amended Petition in Civil Case No. 0098161 is hereby DISMISSED. No costs.22
Petitioners filed a motion for reconsideration
but this was denied by the appellate court in
a resolution dated 29 February 2008.
Hence, this petition assailing the 29 August
2007 decision of the CA and its 29 February
2008 resolution.
Issues
Petitioners raise the following issues for
resolution:
I. WHETHER OR NOT THE PRINCIPLE OF RES
JUDICATA IS APPLICABLE IN THE INSTANT
CASE TAKING INTO CONSIDERATION THE
FINAL DECISION OF THE COURT OF APPEALS
IN CA. G.R. SP NO. 64702.
II. WHETHER OR NOT PPA IN DENYING THE
CLAIM OF PETITIONERS FOR 40% RATA HAS
COMMITTED A VIOLATION OF THEIR
CONSTITUTIONAL RIGHT TO EQUAL
PROTECTION; AND
III. WHETHER OR NOT PETITIONERS ARE
ENTITLED TO 40% RATA AND SHOULD NOT
BE MADE TO REFUND THE RATA THEY HAD
ALREADY RECEIVED.
Petitioners Argument
Petitioners submit that the decision of the CA
in CA G.R. SP No. 64702 adequately cited
jurisprudence and authorities on the matter
involving the issue of res judicata. Such
decision of the appellate court was not
appealed by the PPA and as such, has

attained finality. In view thereof, petitioners

allege that the case of PPA v. COA, et al.23
can no longer serve as a ground for the
dismissal of the instant case since such
would result in "the sacrifice of justice to
technicality."24
Petitioners further submit that the CA in its
decision in CA G.R. SP No. 91743 may have
overlooked the significance of the Supreme
Courts ruling in the case of De Jesus v.
Commission on Audit, et al.25 which
extended the prescribed date of effectivity of
R.A. No. 6758 from 1 July 1989 to 31 October
1989, viz:
In the present case under scrutiny, it is
decisively clear that DBM-CCC No. 10, which
completely disallows payment of allowances
and other additional compensation to
government officials and employees starting
November 1, 1989 is not a mere
interpretative or internal regulation. It is
something more than that. And why not,
when it tends to deprive government workers
of their allowances and additional
compensation sorely needed to keep body
and soul together. x x x
Petitioners claim that the DBM, which is the
agency tasked to implement R.A. No. 6758,
amplified this extension in its 4 May 1992
letter to the Administrator of the National
Electrification Administration (NEA). The
pertinent portion of the letter reads:
DBM has authorized certain GOCCs/GFIs to
grant also to officials and employees hired
between the period of July 1, 1989 and
October 31, 1989 the allowances and fringe
benefit enumerated in said Item 5.5 of CCC
No. 10.
At this juncture it is pertinent to point out
that although the effectivity date prescribed
in R.A. No. 6758 is July 1, 1989, said Act and
its implementing circulars were formally
promulgated only in the later part of October
1989. The preparation of all required
documents, more particularly the Index of
Occupational Services (IOS) and the Position
Allocation List (PAL) for the GOCCs/GFIs was
completed at much later date. Thus, within
the period of transition from July 1, 1989 up
to the date of completion of all the required
documents for the actual implementation by
each GOCC/GFI of said salary
standardization, flexibility in the

interpretation of rules and regulations

prescribed under R.A. 6758 was necessary.
DBM felt it illogical to assume that during the
period R.A. 6758 was not yet issued all
GOCCs/GFIs were already aware of what
implementing guidelines it (DBM) will
prescribe and have their personnel actions
accordingly adjusted to said guidelines.
Likewise, it is counter-productive if at that
time, we advised all GOCCs/GFIs to suspend
their personnel actions as same could be
disruptive to their operations and delay the
completion of important projects.
Premised on the above considerations, we
maintain the position that our action allowing
officials and employees hired between the
period of July 1, 1989 and October 31, 1989
to be paid allowances under Item No. 5.5 of
CCC No. 10 is logically tenable and
reasonable since same was made during the
"transitory period" from the old system to
the new system.26
They further claim that even the COA took
cognizance of this extension in the
memorandum27 issued by the officer-incharge of the COA Audit Office, to wit:
Moreover, this office gives much weight to
the position of the Secretary, DBM in his
letter to the Administrator, NEA, dated
October 30, 1993 that the cut-off date of July
1, 1989 prescribed in R.A. 6758/CCC #10
was extended to October 31, 1989 primarily
on consideration that said R.A. 6758/CCC
#10 were formally issued/promulgated only
in the later part of October 1989. x x x
Petitioners likewise raised as their cause of
action the violation of their constitutional
right to equal protection of the law. They
contend that this alone would constitute
sufficient justification for the filing anew of
the instant petition. Contrary to the
statement in the assailed decision of the CA
to the effect that they failed to plead or raise
such issue in the trial court, they submit that
a perusal of their amended petition would
show that paragraphs 30, 31, 32 and 33
thereof were devoted to that issue.
Finally, as regards the matter of refund of the
RATA being demanded by COA, petitioners
submit that they should not be required to
make such refund since these were received
in good faith and on the honest belief that
they were entitled to it.

PPAs Argument
Respondent PPA maintains that PPA
employees who were appointed to
managerial and supervisory positions after
the effectivity of RA No. 6758 are not entitled
to the 40% RATA benefit provided under LOI
No. 97. Consistent with the ruling of the
Court in PPA v. COA, et al.,28 respondent PPA
contends that only the first category officials
or those who were granted and were
receiving RATA equivalent to 40% of their
salaries prior to 1 July 1989 are entitled to
such benefits. Petitioners who are included in
the second category officials or those who
are not incumbents as of 1 July 1989 are not
entitled to the 40% RATA benefit provided
under LOI No. 97.
Our Ruling
There is merit in petitioners argument that
their petition should not be dismissed on the
ground of res judicata since this is based on
jurisprudence and issuances not yet in
existence at the time of the promulgation of
the Courts decision in PPA v. COA, et al.29
Petitioners are, however, incorrect in their
contention that the decision of the appellate
court in CA-G.R. SP No. 64702 which was not
appealed by the PPA has become final and as
such, barred the appellate courts
subsequent ruling in CA-G.R. SP No. 91743.
We note that when the petition was elevated
to the CA in the first instance in CA-G.R. SP
No. 64702, the matter submitted to be
resolved by the appellate court was simply
the issue on whether the trial court was
correct in granting the motion to dismiss and
in declaring that the case is barred by the
principle of res judicata. Despite the nonappeal by PPA of the appellate courts ruling
that res judicata is not applicable, the case
did not attain finality in view of the order of
the CA remanding the case to the trial court
for continuation of hearing. The appellate
courts ruling in CA G.R. SP No. 91743,
therefore, was not barred by the ruling in CA
G.R. SP No. 64702 since the ruling in the
second instance was already a ruling after
trial on the merits.
Although the principle of res judicata is not
applicable, the petition must still fail because
our ruling must adhere to the doctrine of
stare decisis. In Chinese Young Men's
Christian Association of the Philippine Islands

v. Remington Steel Corporation,30 the Court

expounded on the importance of this
doctrine in securing certainty and stability of
judicial decisions, thus:
Time and again, the court has held that it is a
very desirable and necessary judicial
practice that when a court has laid down a
principle of law as applicable to a certain
state of facts, it will adhere to that principle
and apply it to all future cases in which the
facts are substantially the same. Stare
decisis et non quieta movere. Stand by the
decisions and disturb not what is settled.
Stare decisis simply means that for the sake
of certainty, a conclusion reached in one
case should be applied to those that follow if
the facts are substantially the same, even
though the parties may be different. It
proceeds from the first principle of justice
that, absent any powerful countervailing
considerations, like cases ought to be
decided alike. Thus, where the same
questions relating to the same event have
been put forward by the parties similarly
situated as in a previous case litigated and
decided by a competent court, the rule of
stare decisis is a bar to any attempt to
relitigate the same issue. (Emphasis
supplied)
The issues raised by petitioners are no
longer novel. In a catena of Cases31
promulgated after De Jesus v. COA32 and
Cruz v. COA,33 this Court has ruled that the
pronouncement it has established in the
earlier case of PPA v. COA, et al.34 with
regard to the interpretation and application
of Section 12 of RA 6758 is still applicable.
The subsequent decisions maintained that
allowances or fringe benefits, whether or not
integrated into the standardized salaries
prescribed by R.A. 6758, should continue to
be enjoyed only by employees who (1) were
incumbents and (2) were receiving those
benefits as of 1 July 1989.
In those cases, the Court reiterated that the
intention of the framers of the law was to
phase out certain allowances and privileges
gradually, without upsetting the principle of
non-diminution of pay. The intention of
Section 12 to protect incumbents who were
already receiving those allowances on 1 July
1989, when RA 6758 took effect was
emphasized thus:

An incumbent is a person who is in present

possession of an office.
The consequential outcome, under sections
12 and 17, is that if the incumbent resigns or
is promoted to a higher position, his
successor is no longer entitled to his
predecessors RATA privilege x x x or to the
transition allowance.
Finally, to explain what July 1, 1989
pertained to, we held in the same case as
follows:
x x x. The date July 1, 1989 becomes crucial
only to determine that as of said date, the
officer was an incumbent and was receiving
the RATA, for purposes of entitling him to its
continued grant. x x x.
In Philippine International Trading
Corporation v. COA, the Court confirmed the
legislative intention in this wise:
x x x There was no intention on the part of
the legislature to revoke existing benefits
being enjoyed by incumbents of government
positions at the time of the passage of RA
6758 by virtue of Sections 12 and 17 thereof.
x x x.
The Court stressed that in reserving the
benefits to incumbents alone, the
legislatures intention was not only to adhere
to the policy of non-diminution of pay, but
also to be consistent with the prospective
application of laws and the spirit of fairness
and justice.35 (Emphasis omitted)
The disquisition of the Court in Philippine
National Bank v. Palma36 is instructive, viz:
The reliance of the court a quo on Cruz v.
COA is misplaced. It was held in that case
that the specific date of hiring, October 31,
1989, had been not only arbitrarily
determined by the COA, but also used as an
unreasonable and unsubstantial basis for
awarding allowances to employees. The
basis for the Courts ruling was not primarily
the resulting disparity in salaries received for
the same work rendered but, more
important, the absence of a distinction in the
law that allowed the grant of such benefits -between those hired before and those after
the said date.
Thus, setting a particular date as a
distinction was nullified, not because it was

constitutionally infirm or was against the

"equal pay for equal work" policy of RA 6758.
Rather, the reason was that the COA had
acted without or in excess of its authority in
arbitrarily choosing October 31, 1989, as the
cutoff date for according the allowances. It
was explained that "when the law does not
distinguish, neither should the court." And
for that matter, neither should the COA.
In consonance with stare decisis, there
should be no more misgivings about the
proper application of Section 12. In the
present case, the payment of benefits to
employees hired after July 1, 1989, was
properly withheld, because the law clearly
mandated that those benefits should be
reserved only to incumbents who were
already enjoying them before its enactment.
Withholding them from the others ensured
that the compensation of the incumbents
would not be diminished in the course of the
latters continued employment with the
government agency.
It bears emphasis also that in promulgating
the Irene Cruz case, there was no intention
on the part of the Court to abandon its
earlier ruling in PPA v. COA, et al.37 The
factual circumstances in the former case are
different from those attendant in the case of
herein petitioners. In fine, the Irene Cruz
case is not on all fours with the present case.
The petitioners in the former case, who were
employees of the Sugar Regulatory
Administration, were able to obtain from the
Office of the President a post facto approval
or ratification of their social amelioration
benefit.1wphi1 No such authority granted
by the Office of the President has been
presented by the second category officials of
the PPA.
Petitioners further invoked that the denial of
their claim of 40% RATA violated their
constitutional right to equal protection of the
laws. We note that the Constitution does not
require that things which are different in fact
be treated in law as though they were the
same. The equal protection clause does not
prohibit discrimination as to things that are
different. It does not prohibit legislation
which is limited either in the object to which
it is directed or by the territory within which
it is to operate.38
The equal protection of the laws clause of
the Constitution allows classification. x x x. A

law is not invalid simply because of simple

inequality. The very idea of classification is
that of inequality, so that it goes without
saying that the mere fact of inequality in no
manner determines the matter of
constitutionality. All that is required of a valid
classification is that it be reasonable, which
means that the classification should be
based on substantial distinctions which make
for real differences, that it must be germane
to the purpose of the law; that it must not be
limited to existing conditions only; and that it
must apply equally to each member of the
class.39
As explained earlier, the different treatment
accorded the second sentence (first
paragraph) of Section 12 of RA 6758 to the
incumbents as of 1 July 1989, on one hand,
and those employees hired on or after the
said date, on the other, with respect to the
grant of non-integrated benefits lies in the
fact that the legislature intended to gradually
phase out the said benefits without,
however, upsetting its policy of nondiminution of pay and benefits.40
The consequential outcome under Sections
12 and 17 is that if the incumbent resigns or
is promoted to a higher position, his
successor is no longer entitled to his
predecessors RATA privilege or to the
transition allowance. After 1 July 1989, the
additional financial incentives such as RATA
may no longer be given by the GOCCs with
the exemption of those which were
authorized to be continued under Section 12
of RA 6758.41
Therefore, the aforesaid provision does not
infringe the equal protection clause of the
Constitution as it is based on reasonable
classification intended to protect the rights of
the incumbents against diminution of their
pay and benefits.42
Anent the issue of refund, we note that
petitioners were referring to the RAT A
received by the second category officials
pursuant to PPA Memorandum Circular No.
36-89 dated 23 October 1989 and PPA
Memorandum Circular No. 46-90 dated 14
November 1990. We deem it 110 longer
necessary to discuss this issue considering
that it was already ruled upon in the earlier
PPA case and was even part of the
dispositive portion43 of the decision which
became final and executory. Well-settled is

the rule that once a judgment becomes final

and executory, it can no longer be disturbed,
altered, or modified in any respect. It is
essential to an effective administration of
justice that once a judgment has become
final, the issue or cause therein should be
laid to rest.44 The arguments of petitioners
regarding this issue should have been raised
in that case and not in this present petition.
We conclude this case with the words
borrowed from former Chief Justice Artemio
V. Panganiban:
During these tough economic times, this
Court understands, and in fact sympathizes
with, the plight of ordinary government
employees. Whenever legally possible, it has
bent over backwards to protect labor and
favor it with additional economic
advantages. In the present case, however,
the Salary Standardization Law clearly
provides that the claimed benefits shall
continue to be granted only to employees
who were "incumbents" as of July 1, 1989.
Hence, much to its regret, the Court has no
authority to reinvent or modify the law to
extend those benefits even to employees
hired after that date.45
WHEREFORE, the instant Petition for Review
on Ce11iorari is DENIED. The Decision dated
29 August 2007 and Resolution dated 29
February 2008 of the Court Appeals in CAG.R. SP No. 91743 are AFFIRMED. No
pronouncement as to costs.
SO ORDERED.

National Artist v Executive Secretary

Art has traditionally been viewed as the
expression of everything that is true, good
and beautiful. As such, it is perceived to
evoke and produce a spirit of harmony. Art is
also considered as a civilizing force, a
catalyst of nation-building. The notion of art
and artists as privileged expressions of
national culture helped shape the grand
narratives of the nation and shared symbols
of the people. The artist does not simply
express his/her own individual inspiration but
articulates the deeper aspirations of history
and the soul of the people.2 The law
recognizes this role and views art as
something that "reflects and shapes values,
beliefs, aspirations, thereby defining a

peoples national identity."3 If unduly

politicized, however, art and artists could stir
controversy and may even cause discord, as
what happened in this case.
The Antecedents
History of the Order of National Artists

On April 27, 1972, former President

Ferdinand E. Marcos issued Proclamation No.
10014 and, upon recommendation of the
Board of Trustees of the Cultural Center of
the Philippines (CCP), created the category of
Award and Decoration of National Artist to be
awarded to Filipinos who have made distinct
contributions to arts and letters. In the same
issuance, Fernando Amorsolo was declared
as the first National Artist.
On May 15, 1973, Proclamation No. 11445
was issued. It amended Proclamation No.
1001 "by creating a National Artists Awards
Committee" that would "administer the
conferment of the category of National
Artist" upon deserving Filipino artists. The
Committee, composed of members of the
Board of Trustees of the CCP, was tasked to
"draft the rules to guide its deliberations in
the choice of National Artists, to the end that
those who have created a body of work in
the arts and letters capable of withstanding
the test of time will be so recognized."
The authority of the National Artists Awards
Committee to administer the conferment of
the National Artist Award was again
reiterated in Presidential Decree No. 2086
issued on June 7, 1973.
On April 3, 1992, Republic Act No. 7356,
otherwise known as the Law Creating the
National Commission for Culture and the
Arts, was signed into law. It established the
National Commission for Culture and the Arts
(NCCA) and gave it an extensive mandate
over the development, promotion and
preservation of the Filipino national culture
and arts and the Filipino cultural heritage.
The NCCA was tasked with the following:
Sec. 8. The Commission. A National
Commission for Culture and Arts is hereby
created to formulate policies for the
development of culture and arts; implement
these policies in coordination with affiliated
cultural agencies; coordinate the

implementation of programs of these

affiliated agencies; administer the National
Endowment Fund for Culture and Arts
(NEFCA); encourage artistic creation within a
climate of artistic freedom; develop and
promote the Filipino national culture and
arts; and preserve Filipino cultural heritage.
The Commission shall be an independent
agency. It shall render an annual report of its
activities and achievements to the President
and to Congress.
Among the specific mandates of the NCCA
under Republic Act No. 7356 is to "extend
recognition of artistic achievement through
awards, grants and services to artists and
cultural groups which contribute significantly
to the Filipinos cultural legacy."7 In
connection with this mandate, the NCCA is
vested with the power to "advise the
President on matters pertaining to culture
and the arts, including the creation of a
special decoration or award, for persons who
have significantly contributed to the
development and promotion of Philippine
culture and arts."8
As both the CCP Board of Trustees and the
NCCA have been mandated by law to
promote, develop and protect the Philippine
national culture and the arts, and authorized
to give awards to deserving Filipino artists,
the two bodies decided to team up and
jointly administer the National Artists
Award.9 Thereafter, they reviewed the
guidelines for the nomination, selection and
administration of the National Artists Award.
Pursuant to their respective powers to draft
and promulgate rules, regulations and
measures to guide them in their
deliberations in the choice of National Artists,
the CCP and NCCA adopted the following
revised guidelines in September 200710:
4. ADMINISTRATION OF THE AWARD
4.1. The National Commission for Culture and
the Arts (NCCA) shall plan, organize and
implement the Order of National Artists in
coordination with the Cultural Center of the
Philippines (CCP).
4.2. It shall enlist the support and
cooperation of private sector experts from
the various fields of art to ensure that the
awards are implemented in a successful and
impartial manner.

4.3. The National Artist Award Secretariat

shall commission art experts to form a
Special Research Group who shall verify
information submitted on nominees and
provide essential data.
They shall be selected for their specialization
and familiarity with the works and
accomplishments of nominated artists.
4.4. The Special Research Group shall be
composed of ten (10) to twenty (20)
members who have expertise in one or more
fields or disciplines.
4.5. The National Artist Award Council of
Experts shall be created before or during the
nomination period. It is tasked to screen
nominees and recommend to the NCCA and
CCP Boards the candidates for the Order of
National Artists. It shall be composed of
highly regarded peers, scholars, (including
cultural philosophers and historians),
academicians, researchers, art critics, and
other knowledgeable individuals. A wider
age-range of experts who would have firsthand knowledge of achievements of
nominees shall be considered.

areas/disciplines. The living National Artists

will automatically become members in
addition to the forty-nine (49) selected
members. These members will constitute the
first deliberation panel and will be invited to
evaluate the nominations and materials
submitted by the Special Research Group.
4.8. Any member of the Council of Experts
who is nominated or related to a nominee up
to the fourth degree of consanguinity or
affinity shall inhibit himself/herself from the
deliberation process. Likewise, any member
may decline to participate in the deliberation
for any reason or may be removed for just
cause upon recommendation to the NCCA
Board by at least two thirds (2/3) of the
members; in which case, the National Artist
Award Secretariat shall again select the
replacements for those who decline or
resigned until the first deliberation panel is
completed.
4.9. The list of nominated members of the
National Artist Award Council of Experts shall
be reviewed by the National Artist Award
Secretariat as needed, for purposes of
adding new members or replacements.

4.6. The selection of the members of the

National Artist Award Council of Experts shall
be based on the following criteria:

4.10. The members of the National Artist

Award Council of Experts shall serve for a
fixed term of three (3) years.

(a) should have achieved authority,

credibility and track record in his field(s) of
expertise;

5. CRITERIA FOR SELECTION

(b) should have extensive knowledge in his

field(s) and his views on Philippine art and
culture must be national in perspective;
(c) should be a recognized authority in the
study or research of Philippine art and
culture;
(d) must be willing to devote sufficient time
and effort to the work of the Council;
(e) must be willing to sign a non-disclosure
statement in order to safeguard the
confidentiality of the deliberations;
(f) must not have been convicted with finality
of any crime by a court of justice or
dismissed for cause by any organization,
whether public or private.
4.7. The National Artist Award Council of
Experts shall be composed of a maximum of
seven (7) members each of the seven (7)

The Order of National Artists shall be given

to:
5.1 Living artists who are Filipino citizens at
the time of nomination, as well as those who
died after the establishment of the award in
1972 but were Filipino citizens at the time of
their death.
5.2 Artists who through the content and form
of their works have contributed in building a
Filipino sense of nationhood.
5.3. Artists who have pioneered in a mode of
creative expression or style, thus, earning
distinction and making an impact on
succeeding generations of artists.
5.4. Artists who have created a substantial
and significant body of works and/or
consistently displayed excellence in the
practice of their art form thus enriching
artistic expression or style.

5.5 Artists who enjoy broad acceptance

through:
5.5.1. prestigious national and/or
international recognition, such as the Gawad
CCP Para sa Sining, CCP Thirteen Artists
Award and NCCA Alab ng Haraya
5.5.2. critical acclaim and/or reviews of their
works
5.5.3. respect and esteem from peers.
6. NOMINATION PROCEDURE
6.1. The National Artist Award Secretariat
shall announce the opening of nominations
through media releases and letters to
qualified organizations.
6.2. Candidates may be nominated under
one or more of the following categories:

6.4. Members of the Special Research Group,

as well as agencies attached to the NCCA
and CCP shall not submit nominations.
6.5. NCCA and CCP Board members and
consultants and NCCA and CCP officers and
staff are automatically disqualified from
being nominated.
6.6. Nominations shall be accepted only
when these are submitted in writing and with
proper supporting documentation, as follows:
6.6.1. A cover letter signed by the head or
designated representative of the nominating
organization.
The cover letter shall be accompanied by a
Board Resolution approving the nominee
concerned with the said resolution signed by
the organization President and duly certified
by the Board Secretary.

6.2.1. Dance choreography, direction

and/or performance.

6.6.2. A duly accomplished nomination form;

6.2.2. Music composition, direction, and/or

performance.

6.6.3. A detailed curriculum vitae of the

nominee;

6.2.3. Theater direction, performance

and/or production design.

6.6.4. A list of the nominees significant

works categorized according to the criteria;

6.2.4. Visual Arts painting, sculpture,

printmaking, photography, installation art,
mixed media works, illustration,
comics/komiks, graphic arts, performance art
and/or imaging.

6.6.5. The latest photograph (color or black

and white) of the nominee, either 5" x 7" or
8" x 11";

6.2.5. Literature poetry, fiction (short story,

novel and play); non-fiction (essay,
journalism, literary criticism and historical
literature).
6.2.6. Film and Broadcast Arts direction,
writing, production design, cinematography,
editing, camera work, and/or performance.

6.2.7. Architecture, Design and Allied Arts

architecture design, interior design, industrial
arts design, landscape architecture and
fashion design.
6.3. Nominations for the Order of National
Artists may be submitted by government and
non-government cultural organizations and
educational institutions, as well as private
foundations and councils.

6.6.6. Pertinent information materials on the

nominees significant works (on CDs, VCDs
and DVDs);
6.6.7. Copies of published reviews;
6.6.8. Any other document that may be
required.
6.7. Nominations received beyond the
announced deadline for the submission of
nominations shall not be considered.
6.8. The National Artist Award Secretariat
shall announce the opening of nominations
through media releases.
6.9. All inquiries and nominations shall be
submitted to
The NATIONAL ARTIST AWARD SECRETARIAT
Office of the Artistic Director Cultural Center
of the Philippines Roxas Boulevard, 1300
Pasay City or The NATIONAL ARTIST AWARD
SECRETARIAT Office of the Deputy Executive
Director National Commission for Culture and

the Arts 633 General Luna Street,

Intramuros, Manila
7. SCREENING AND SELECTION PROCESS
7.1. The National Artist Award Secretariat
shall pre-screen the nominees based on
technical guideline items 5.1, 6.2, 6.3, 6.4,
6.5 and 6.6. The pre-screening shall not be
based on the accomplishments and merits of
the nominee.
7.2. The Special Research Group shall
accomplish its task within six (6) months.
The main objective is to verify the validity of
the data, and evaluate the quality, true value
and significance of works according to the
criteria. It shall come up with the updated
and comprehensive profiles of nominees
reflecting their most outstanding
achievements.
7.3. The National Artist Award Secretariat will
meet to review the list of nominees for
oversights. Consequently, deserving
nominees shall be added to the list.
7.4. The first deliberation panel (Council of
Experts) shall be intra-disciplinary. The
panelists shall be grouped according to their
respective fields of expertise or disciplines to
shortlist the nominees in their disciplines or
categories for presentation to the second
deliberation panel.
7.5. The second deliberation panel shall be
composed of a different set of experts from
the first deliberation panel three (3) experts
each of the seven (7) areas/discipline and
may include members from varying
backgrounds such as critics and
academicians. The achievements of each
shortlisted nominee shall be presented by
one designated member of Council of
Experts. Then panel deliberates and ranks
the shortlisted nominees according to the
order of precedence following the set criteria
of the Order of National Artists. In extreme
cases, the Second Deliberation may add new
names to the lists.
7.6. The second deliberation panel may
recommend not to give award in any
category if no nominee is found deserving.
The number of awardees shall also depend
on the availability of funds. All decisions and
recommendations shall be in writing.

7.7. The recommendations from the Second

Deliberation Panel of the National Artist
Award Council of Experts shall then be
presented to the joint boards of NCCA and
CCP for final selection. The presentors shall
prepare their presentation in writing together
with an audio-visual presentation or
powerpoint presentation. Written
interpellations/opinions will be accepted from
selected critics. The review shall be based on
the ranking done by the Second Deliberation.
The voting shall be across disciplines. The
National Artists will be given the option
whether to vote on all categories or on
his/her particular discipline.
7.8. Proxy votes will not be allowed in the
Selection Process. Designation of permanent
representatives of agencies should be made
at the outset to make them regular Board
members of NCCA and thus, may be allowed
to cast votes.
7.9. The list of awardees shall be submitted
to the President of the Republic of the
Philippines for confirmation, proclamation
and conferral.
8. PRESENTATION OF THE AWARDS
8.1. The Order of National Artists shall not be
conferred more frequently than every three
(3) years.
8.2. The Order of National Artists shall be
conferred by the President of the Philippines
on June 11 or any appropriate date in fitting
ceremonies to be organized by the National
Artist Secretariat.
8.3. The medallion of the Order of National
Artists and citation shall be given to the
honoree during the conferment ceremony.
The cash award of P100,000.00 in cheque
shall be given immediately after the
ceremony or at another time and place as
requested by the honoree.
8.4. A posthumous conferral consisting of the
medallion and citation shall be given to the
family or legal heir/s of the honoree. The
cash award of P75,000.00 in cheque shall be
given to the honorees legal heir/s or a
representative designated by the family
immediately after the ceremony or at
another time and place as requested by the
family. (Emphases supplied.)

In 1996, the NCCA and the CCP created a

National Artist Award Secretariat composed
of the NCCA Executive Director as
Chairperson, the CCP President as ViceChairperson, and the NCCA Deputy Executive
Director, the CCP Vice-President/Artistic
Director, the NCCA National Artist Award
Officer and the CCP National Artist Award
Officer as members. They also centralized
with the NCCA all financial resources and
management for the administration of the
National Artists Award. They added another
layer to the selection process to involve and
allow the participation of more members of
the arts and culture sector of the Philippines
in the selection of who may be proclaimed a
National Artist.
On September 19, 2003, Executive Order No.
236, s. 2003, entitled Establishing the
Honors Code of the Philippines to Create an
Order of Precedence of Honors Conferred and
for Other Purposes, was issued. The National
Artists Award was renamed the Order of
National Artists and raised to the level of a
Cultural Order, fourth in precedence among
the orders and decorations that comprise the
Honors of the Philippines. Executive Order
No. 236, s. 2003, recognizes the vital role of
the NCCA and the CCP in identifying Filipinos
who have made distinct contributions to arts
and letters and states that the National Artist
recognition is conferred "upon the
recommendation of the Cultural Center of
the Philippines and the National Commission
for Culture and the Arts."12 Executive Order
No. 236, s. 2003, further created a
Committee on Honors to "assist the President
in evaluating nominations for recipients of
Honors,"13 including the Order of National
Artists, and presidential awards. The
Committee on Honors has been allowed to
"authorize relevant department or
government agencies to maintain Honors
and/or Awards Committees to process
nominations for Honors and/or Presidential
Awards."14 In this connection, Section 2.4(A)
of the Implementing Rules and Regulations15
of Executive Order No. 236, s. 2003, states:

The Committee on Honors serves as a

National Awards Committee. It is composed
of the following:
The Executive Secretary, Chairman
The Secretary of Foreign Affairs, ViceChairman
Head, Presidential Management Staff,
member
Presidential Assistant for Historical Affairs,
member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
All nominations from the various awards
committees must be submitted to the
Committee on Honors via the Chancellery of
Philippine Orders and State Decorations. The
Chancellery shall process nominations for the
consideration of the Committee on Honors.
The Committee on Honors shall screen and
recommend these nominations to the
President.
The Committee on Honors shall, as a general
rule, serve as a screening committee to
ensure that nominations received from the
various awards committees meet two tests:
that there has not been an abuse of
discretion in making the nomination, and
that the nominee is in good standing. Should
a nomination meet these criteria, a
recommendation to the President for
conferment shall be made.
The President of the Philippines takes the
recommendations of the Committee on
Honors in the highest consideration when
making the final decision on the conferment
of awards. (Emphasis supplied.)

There shall be two types of awards

committees: the Committee on Honors and
the various awards committees in the
various units of the government service.

Executive Order No. 435, s. 2005, entitled

Amending Section 5(IV) of Executive Order
No. 236 Entitled "Establishing the Honors
Code of the Philippines to Create an Order of
Precedence of Honors Conferred and for
Other Purposes" was subsequently issued on
June 8, 2005. It amended the wording of
Executive Order No. 236, s. 2003, on the
Order of National Artists and clarified that
the NCCA and the CCP "shall advise the
President on the conferment of the Order of
National Artists."

A. The Committee on Honors

Controversy Surrounding the 2009

2.4: Awards Committees

Order of National Artists

Petitioners alleged that on January 30, 2007,
a joint meeting of the NCCA Board of
Commissioners and the CCP Board of
Trustees was held to discuss, among others,
the evaluation of the 2009 Order of National
Artists and the convening of the National
Artist Award Secretariat. The nomination
period was set for September 2007 to
December 31, 2007, which was later
extended to February 28, 2008. The prescreening of nominations was held from
January to March 2008.16
On April 3, 2009, the First Deliberation Panel
met.17 A total of 87 nominees18 were
considered during the deliberation and a
preliminary shortlist19 of 32 names was
compiled.
On April 23, 2009, the Second Deliberation
Panel purportedly composed of an entirely
new set of Council of Experts met and
shortlisted 13 out of the 32 names in the
preliminary shortlist.20 On May 6, 2009, the
final deliberation was conducted by the 30member Final Deliberation Panel comprised
of the CCP Board of Trustees and the NCCA
Board of Commissioners and the living
National Artists.21 From the 13 names in the
second shortlist, a final list of four names
was agreed upon.
On May 6, 2009, a letter, signed jointly by
the Chairperson of the NCCA, Undersecretary
Vilma Labrador, and the President and
Artistic Director of the CCP, Mr. Nestor Jardin,
was sent to the President.23 The letter
stated, thus:
May 6, 2009
Her Excellency GLORIA MACAPAGAL-ARROYO
President of the Philippines
Malacaan Palace, Manila
Subject: 2009 Order of National Artist
Awardees
Dear President Arroyo:
We are respectfully submitting a
recommendation of the NCCA Board of
Trustees and CCP Board of Trustees for the
Proclamation of the following as 2009 Order
of National Artists:

1. Mr. MANUEL CONDE+ (Posthumous) Film

and Broadcast Arts
2. Dr. RAMON SANTOS Music
3. Mr. LAZARO FRANCISCO+ (Posthumous)
Literature
4. Mr. FEDERICO AGUILAR-ALCUAZ Visual
Arts
The above persons were identified by
experts in the various fields of arts and
culture, including living National Artists. An
intensive selection process was observed
following established practice. In the past,
awards were presented by the President at a
Ceremony held at the Malacaan Palace
followed by a program called "Parangal" at
the Cultural Center of the Philippines. We
also propose to continue with past practice
of celebrating the life and works of the four
(4) Order of National Artists through an
exhibit that will open and a commemorative
publication that will be released on the day
of the proclamation.
We respectfully suggest, subject to Her
Excellencys availability, that the
Proclamation be on June 11, 2009, if possible
at the Malacaan Palace.
Thank you for your kind attention.
Very respectfully yours,
(Sgd.)
VILMA L. LABRADOR
Chairman
National Commission for Culture and the Arts
According to respondents, the
aforementioned letter was referred by the
Office of the President to the Committee on
Honors. Meanwhile, the Office of the
President allegedly received nominations
from various sectors, cultural groups and
individuals strongly endorsing private
respondents Cecile Guidote-Alvarez, Carlo
Magno Jose Caparas, Francisco Maosa and
Jose Moreno. The Committee on Honors
purportedly processed these nominations
and invited resource persons to validate the
qualifications and credentials of the
nominees.25
The Committee on Honors thereafter
submitted a memorandum to then President

Gloria Macapagal-Arroyo recommending the

conferment of the Order of National Artists
on the four recommendees of the NCCA and
the CCP Boards, as well as on private
respondents Guidote-Alvarez, Caparas,
Maosa and Moreno. Acting on this
recommendation, Proclamation No. 1823
declaring Manuel Conde a National Artist was
issued on June 30, 2009. Subsequently, on
July 6, 2009, Proclamation Nos. 1824 to 1829
were issued declaring Lazaro Francisco,
Federico AguilarAlcuaz and private
respondents Guidote-Alvarez, Caparas,
Maosa and Moreno, respectively, as
National Artists. This was subsequently
announced to the public by then Executive
Secretary Eduardo Ermita on July 29,
2009.26
Convinced that, by law, it is the exclusive
province of the NCCA Board of
Commissioners and the CCP Board of
Trustees to select those who will be
conferred the Order of National Artists and to
set the standard for entry into that select
group, petitioners instituted this petition for
prohibition, certiorari and injunction (with
prayer for restraining order) praying that the
Order of National Artists be conferred on Dr.
Santos and that the conferment of the Order
of National Artists on respondents GuidoteAlvarez, Caparas, Maosa and Moreno be
enjoined and declared to have been rendered
in grave abuse of discretion.27
In a Resolution28 dated August 25, 2009, the
Court issued a status quo order29 enjoining
"public respondents" "from conferring the
rank and title of the Order of National Artists
on private respondents; from releasing the
cash awards that accompany such
conferment and recognition; and from
holding the acknowledgment ceremonies for
recognition of the private respondents as
National Artists."
What is the nature and scope of the power of
the President to confer the Order of the
National Artists and how should it be
exercised? This is the essential issue
presented in this case. It will determine
whether the proclamation of respondents as
National Artists is valid. Preliminary
procedural issues on the standing of the
petitioners and the propriety of the remedies
taken,30 however, call for resolution as a

prerequisite to the discussion of the main

question.
Contention of the Parties
A perusal of the pleadings submitted by the
petitioners reveals that they are an
aggrupation of at least three groups, the
National Artists, cultural workers and
academics, and the Concerned Artists of the
Philippines (CAP). The National Artists assert
an "actual as well as legal interest in
maintaining the reputation of the Order of
National Artists."31 In particular, they invoke
their right to due process not to have the
honor they have been conferred with
diminished by the irregular and questionable
conferment of the award on respondents
Guidote-Alvarez, Caparas, Maosa and
Moreno. For petitioners, this would adversely
affect their right to live a meaningful life as it
detracts not only from their right to enjoy
their honor as a fruit of their lifelong labor
but also from the respect of their peers.32
The cultural workers, academics and CAP
claim to be Filipinos who are deeply
concerned with the preservation of the
countrys rich cultural and artistic heritage.
As taxpayers, they are concerned about the
use of public monies for illegal appointments
or spurious acts of discretion.33
All of the petitioners claim that former
President Macapagal-Arroyo gravely abused
her discretion in disregarding the results of
the rigorous screening and selection process
for the Order of National Artists and in
substituting her own choice for those of the
Deliberation Panels. According to petitioners,
the Presidents discretion to name National
Artists is not absolute but limited. In
particular, her discretion on the matter
cannot be exercised in the absence of or
against the recommendation of the NCCA
and the CCP. In adding the names of
respondents Caparas, Guidote-Alvarez,
Maosa and Moreno while dropping Dr.
Santos from the list of conferees, the
Presidents own choices constituted the
majority of the awardees in utter disregard of
the choices of the NCCA and the CCP and the
arts and culture community which were
arrived at after a long and rigorous process
of screening and deliberation. Moreover, the
name of Dr. Santos as National Artist for
Music was deleted from the final list
submitted by the NCCA and the CCP Boards

without clearly indicating the basis thereof.

For petitioners, the Presidents discretion to
name National Artists cannot be exercised to
defeat the recommendations made by the
CCP and NCCA Boards after a long and
rigorous screening process and with the
benefit of expertise and experience. The
addition of four names to the final list
submitted by the Boards of the CCP and the
NCCA and the deletion of one name from the
said list constituted a substitution of
judgment by the President and a unilateral
reconsideration without clear justification of
the decision of the First, Second and Final
Deliberation Panels composed of experts.34
Petitioners further argue that the choice of
respondent GuidoteAlvarez was illegal and
unethical because, as the then Executive
Director of the NCCA and presidential adviser
on culture and arts, she was disqualified from
even being nominated.35 Moreover, such
action on the part of the former President
constituted grave abuse of discretion as it
gave preferential treatment to respondent
Guidote-Alvarez by naming the latter a
National Artist despite her not having been
nominated and, thus, not subjected to the
screening process provided by the rules for
selection to the Order of National Artists. Her
inclusion in the list by the President
represented a clear and manifest favor given
by the President in that she was exempted
from the process that all other artists have to
undergo. According to petitioners, it may be
said that the President used a different
procedure to qualify respondent GuidoteAlvarez. This was clearly grave abuse of
discretion for being manifest and undue bias
violative of the equal protection clause.36
Respondent Caparas refutes the contention
of the petitioning National Artists and insists
that there could be no prejudice to the latter.
They remain to be National Artists and
continue to receive the emoluments, benefits
and other privileges pertaining to them by
virtue of that honor. On the other hand, all
the other petitioners failed to show any
material and personal injury or harm caused
to them by the conferment of the Order of
National Artists on respondents GuidoteAlvarez, Caparas, Maosa and Moreno. The
rule on standing may not be relaxed in favor
of the petitioners as no question of
constitutionality has been raised and no

issue of transcendental importance is

involved.37
Respondent Caparas further argues that the
remedies of prohibition and injunction are
improper as the act sought to be enjoined
the declaration of respondents GuidoteAlvarez, Caparas, Maosa and Moreno as
National Artists had already been
consummated. In particular, respondent
Caparas was already proclaimed National
Artist through Proclamation No. 1827 issued
on July 6, 2009.38
On the merits, respondent Caparas contends
that no grave abuse of discretion attended
his proclamation as National Artist. The
former President considered the respective
recommendations of the NCCA and the CCP
Boards and of the Committee on Honors in
eventually declaring him (Caparas) as
National Artist. The function of the NCCA and
the CCP Boards is simply to advise the
President. The award of the Order of National
Artists is the exclusive prerogative of the
President who is not bound in any way by the
recommendation of the NCCA and the CCP
Boards. The implementing rules and
regulations or guidelines of the NCCA cannot
restrict or limit the exclusive power of the
President to select the recipients of the Order
of National Artists.39
For her part, in a letter40 dated March 11,
2010, respondent Guidote-Alvarez
manifested that she was waiving her right to
file her comment on the petition and
submitted herself to the Courts discretion
and wisdom.
Respondent Maosa manifested that his
creations speak for themselves as his
contribution to Filipino cultural heritage and
his worthiness to receive the award.
Nonetheless, he expressed his conviction
that the Order of National Artists is not a
right but a privilege that he would willingly
relinquish should he be found not worthy of
it.41
Respondent Moreno did not file any pleading
despite being given several opportunities to
do so. Hence, the Court dispensed with his
pleadings.42
In a Resolution dated July 12, 2011, this
Court gave due course to the petition and
required the parties to file their respective

memoranda.43 Respondent Caparas filed his

memorandum on September 8, 2011,44 the
CCP filed its memorandum on September 19,
2011,45 respondent Maosa on September
20, 2011,46 and the Office of the Solicitor
General filed a manifestation stating that it is
adopting its comment as its memorandum
on September 21, 2011.47 Respondent
Moreno failed to file a Memorandum, hence,
the Court resolved to dispense with the
same.48 Petitioners filed their Memorandum
on May 14, 2012.49
On the other hand, the original position of
the Office of the Solicitor General (OSG) was
similar to that of respondent Caparas.50 In a
subsequent manifestation,51 however, the
OSG stated that the current Board of
Commissioners of the NCCA agree with the
petitioners that the President cannot honor
as a National Artist one who was not
recommended by the joint Boards of the
NCCA and the CCP. The implementing rules
and regulations of Executive Order No. 236,
s. 2003, recognized the binding character of
the recommendation of the NCCA and the
CCP Boards and limited the authority of the
Committee on Honors to the determination
that (1) there has been no grave abuse of
discretion on the part of the NCCA and the
CCP Boards in making the nomination, and
(2) the nominee is in good standing. Where a
nomination meets the said two criteria, a
recommendation to the President to confer
the award shall be made.52
The OSG further argued that, while the
President exercises control over the NCCA
and the CCP, the President has the duty to
faithfully execute the laws, including the
NCCA-CCP guidelines for selection of National
Artists and the implementing rules of
Executive Order No. 236, s. 2003. Moreover,
the laws recognize the expertise of the NCCA
and the CCP in the arts and tasked them to
screen and select the artists to be conferred
the Order of National Artists. Their mandate
is clear and exclusive as no other agency
possesses such expertise.53
The OSG also assailed the former Presidents
choice of respondent Guidote-Alvarez for
being contrary to Republic Act No. 7356.54
Section 11 of the said law provides:
Sec. 11. Membership Restrictions. During
his/her term as member of the Commission,
a Commissioner shall not be eligible for any

grant, or such other financial aid from the

Commission as an individual: Provided,
however, That he/she may compete for
grants and awards on the same level as
other artists one (1) year after his/her term
shall have expired.
The omission of the word "award" in the first
portion of the above provision appears to be
unintentional as shown by the proviso which
states that a member may compete for
grants and awards only one year after his or
her term shall have expired. As such,
respondent Guidote-Alvarez is restricted and
disqualified from being conferred the 2009
Order of National Artists.55
The Courts Ruling
Standing of the Petitioners
Standing is the determination of whether a
specific person is the proper party to bring a
matter to the court for adjudication.56 The
gist of the question of standing is whether a
party alleges such personal stake in the
outcome of the controversy as to assure that
concrete adverseness which sharpens the
presentation of issues upon which the court
depends for illumination of difficult
constitutional questions.57
The parties who assail the constitutionality or
legality of a statute or an official act must
have a direct and personal interest. They
must show not only that the law or any
governmental act is invalid, but also that
they sustained or are in immediate danger of
sustaining some direct injury as a result of its
enforcement, and not merely that they suffer
thereby in some indefinite way. They must
show that they have been or are about to be
denied some right or privilege to which they
are lawfully entitled or that they are about to
be subjected to some burdens or penalties
by reason of the statute or act complained
of.58
In this case, we find that the petitioning
National Artists will be denied some right or
privilege to which they are entitled as
members of the Order of National Artists as a
result of the conferment of the award on
respondents Guidote-Alvarez, Caparas,
Maosa and Moreno. In particular, they will
be denied the privilege of exclusive
membership in the Order of National Artists.

In accordance with Section 2(a)59 of

Executive Order No. 236, s. 2003, the Order
of National Artists is "an exclusive
association of honored individuals." To
ensure the exclusivity of the membership in
the Order, a rigid nomination and screening
process has been established with different
sets of renowned artists and respected art
critics invited to sit as the Council of Experts
for the First and Second Deliberation Panels.
Moreover, all living National Artists are given
a voice on who should be included in their
exclusive club as they automatically become
members of the Final Deliberation Panel that
will vote on who should be included in the
final list to be submitted to the President for
conferment of the Order of National Artists.
To allow the untrammeled discretion and
authority of the President to confer the Order
of National Artists without regard to the
stringent screening and rigorous selection
process established by the NCCA and the
CCP will diminish, if not negate, the exclusive
nature of the said Order. It will unduly
subject the selection and conferment of the
Order of National Artists to politics rather
than to principles and procedures. It will
subvert the transparent and rigorous process
and allow entry to the exclusive Order of
National Artists through a secret backdoor of
lobbying, back channeling and political
accommodation.
Among the other petitioners, Prof. Gemino
Abad presents a unique valid personal and
substantial interest. Like respondents
Caparas, Maosa and Moreno, he was among
the 87 nominees for the 2009 Order of
National Artists. Like respondent Moreno, he
made it to the preliminary shortlist. As he did
not make it to the second shortlist, he was
not considered by the Final Deliberation
Panel, more so by the former President.
It should be recalled too that respondent
Guidote-Alvarez was disqualified to be
nominated for being the Executive Director
of the NCCA at that time while respondents
Maosa and Caparas did not make it to the
preliminary shortlist and respondent Moreno
was not included in the second shortlist. Yet,
the four of them were treated differently and
considered favorably when they were
exempted from the rigorous screening
process of the NCCA and the CCP and
conferred the Order of National Artists. The
Committee on Honors and the former

President effectively treated respondents

Guidote-Alvarez, Caparas, Maosa and
Moreno as a preferred class. The special
treatment accorded to respondents GuidoteAlvarez, Caparas, Maosa and Moreno fails to
pass rational scrutiny.60 No real and
substantial distinction between respondents
and petitioner Abad has been shown that
would justify deviating from the laws,
guidelines and established procedures, and
placing respondents in an exceptional
position. The undue classification was not
germane to the purpose of the law. Instead,
it contradicted the law and well-established
guidelines, rules and regulations meant to
carry the law into effect. While petitioner
Abad cannot claim entitlement to the Order
of National Artists,61 he is entitled to be
given an equal opportunity to vie for that
honor. In view of the foregoing, there was a
violation of petitioner Abads right to equal
protection, an interest that is substantial
enough to confer him standing in this case.
As regards the other concerned artists and
academics as well as the CAP, their claim of
deep concern for the preservation of the
countrys rich cultural and artistic heritage,
while laudable, falls short of the injury in fact
requirement of standing. Their assertion
constitutes a generalized grievance shared in
a substantially equal measure by all or a
large class of citizens.62 Nor can they take
refuge in their status as taxpayers as the
case does not involve any illegal
appropriation or taxation. A taxpayers suit is
proper only when there is an exercise of the
spending or taxing power of the Congress.63
Nonetheless, as a reading of the petition
shows that it has advanced an issue which
deserves the attention of this Court in view
of its seriousness, novelty and weight as
precedent, it behooves the Court to relax the
rules on standing and to resolve the issue
presented before it.64 Moreover, this issue is
of paramount interest,65 which further
justifies a liberal stance on standing.
Propriety of the Remedies
The present action is a petition for
prohibition, certiorari, injunction, restraining
order and all other legal, just and equitable
reliefs.
It has been held that the remedies of
prohibition and injunction are preventive

and, as such, cannot be availed of to restrain

an act that is already fait accompli.66 Where
the act sought to be prohibited or enjoined
has already been accomplished or
consummated, prohibition or injunction
becomes moot.67

Commissioners with respect to the

conferment of the Order of National Artists
are clear. They jointly administer the said
award and, upon their recommendation or
advice, the President confers the Order of
National Artists.

Nevertheless, even if the principal issue is

already moot, this Court may still resolve its
merits for the future guidance of both bench
and bar. Courts will decide a question
otherwise moot and academic if it is
"capable of repetition, yet evading
review."68

To "recommend" and to "advise" are

synonymous. To "recommend" is "to advise
or counsel."74 To "advise" is "to give an
opinion or counsel, or recommend a plan or
course of action; also to give notice. To
encourage, inform or acquaint."75 "Advise"
imports that it is discretionary or optional
with the person addressed whether he will
act on such advice or not.76 This has been
clearly explained in Cojuangco, Jr. v. Atty.
Palma77:

It is an opportune time for the Court to assert

its role as republican schoolmaster,69 a
teacher in a vital national seminar.70 There
are times when the controversy is of such
character that, to prevent its recurrence and
to assure respect for constitutional
limitations, this Court must pass on the
merits of a case.71 This is one such case.
More than being a teaching moment, this is
not the first time that the Order of National
Artists was conferred in the manner that is
being assailed in this case.72 If not
addressed here and now, there is great
probability that the central question involved
in this case will haunt us again in the future.
Every President may invoke absolute
presidential prerogative and thrust upon us
National Artists after his or her own heart, in
total disregard of the advise of the CCP and
the NCCA and the voice of the community of
artists, resulting to repeated episodes of
indignation and uproar from the artists and
the public.
Furthermore, if not corrected, such an act
would give rise to mischief and dangerous
precedent whereby those in the corridors of
power could avoid judicial intervention and
review by merely speedily and stealthily
completing the commission of an illegality.73
In any event, the present petition is also for
certiorari and there is no procedural bar for
the Court to pass upon the question of
whether the proclamations of respondents
Guidote-Alvarez, Caparas, Maosa and
Moreno as National Artists were attended by
grave abuse of presidential discretion.
Limits of the Presidents Discretion
The respective powers of the CCP Board of
Trustees and of the NCCA Board of

The "power to recommend" includes the

power to give "advice, exhortation or
indorsement, which is essentially persuasive
in character, not binding upon the party to
whom it is made." (Emphasis supplied.)
Thus, in the matter of the conferment of the
Order of National Artists, the President may
or may not adopt the recommendation or
advice of the NCCA and the CCP Boards. In
other words, the advice of the NCCA and the
CCP is subject to the Presidents discretion.
Nevertheless, the Presidents discretion on
the matter is not totally unfettered, nor the
role of the NCCA and the CCP Boards
meaningless.
Discretion is not a free-spirited stallion that
runs and roams wherever it pleases but is
reined in to keep it from straying. In its
classic formulation, "discretion is not
unconfined and vagrant" but "canalized
within banks that keep it from
overflowing."78
The Presidents power must be exercised in
accordance with existing laws. Section 17,
Article VII of the Constitution prescribes
faithful execution of the laws by the
President:
Sec. 17. The President shall have control of
all the executive departments, bureaus and
offices. He shall ensure that the laws be
faithfully executed. (Emphasis supplied.)
The Presidents discretion in the conferment
of the Order of National Artists should be
exercised in accordance with the duty to

faithfully execute the relevant laws. The

faithful execution clause is best construed as
an obligation imposed on the President, not a
separate grant of power.79 It simply
underscores the rule of law and, corollarily,
the cardinal principle that the President is
not above the laws but is obliged to obey
and execute them.80 This is precisely why
the law provides that "administrative or
executive acts, orders and regulations shall
be valid only when they are not contrary to
the laws or the Constitution."81
In this connection, the powers granted to the
NCCA and the CCP Boards in connection with
the conferment of the Order of National
Artists by executive issuances were
institutionalized by two laws, namely,
Presidential Decree No. 208 dated June 7,
1973 and Republic Act No. 7356. In
particular, Proclamation No. 1144 dated May
15, 1973 constituted the CCP Board as the
National Artists Awards Committee and
tasked it to "administer the conferment of
the category of National Artist" upon
deserving Filipino artists with the mandate to
"draft the rules to guide its deliberations in
the choice of National Artists":
Proclamation No. 1001 dated April 27, 1972,
creating the Award and Decoration of
National Artist, is hereby amended by
creating a National Artists Awards
Committee, hereinafter to administer the
conferment of the category of National Artist
upon those deserving thereof. The
Committee, which shall be composed of
members of the Board of Trustees of the
Cultural Center of the Philippines, shall
organize itself immediately and shall draft
the rules to guide its deliberations in the
choice of National Artists, to the end that
those who have created a body of work in
the arts and in letters capable of
withstanding the test of time will be so
recognized. (Emphases supplied.)

cultural agencies including but not limited to

the Cultural Center of the Philippines, the
Institute of Philippine Languages, the
National Historical Institute, the National
Library, the National Museum, the Records
Management and Archives Office. However,
they shall continue operating under their
respective charters or as provided by law
where provisions therein are not inconsistent
with the provisions of this Act. They shall
serve as the national repository and/or
showcase, as the case may be, of the best of
Philippine culture and arts. For this purpose,
these agencies shall submit periodic reports,
including recommendations to the [NCCA].
(Emphasis supplied.)
On the other hand, the NCCA has been given
the following mandate in connection with the
conferment of cultural or arts awards:
Sec. 12. Mandate. The Commission is
hereby mandated to formulate and
implement policies and plans in accordance
with the principles stated in Title 1 of this
Act.
(a) To encourage the continuing and
balanced development of a pluralistic culture
by the people themselves, it shall:
(4) extend recognition of artistic
achievement through awards, grants and
services to artists and cultural groups which
contribute significantly to the Filipinos
cultural legacy;
Sec. 13. Powers and Functions. To carry out
its mandate, the Commission shall exercise
the following powers and functions:
(j) advise the President on matters pertaining
to culture and the arts, including the creation
of a special decoration or award, for persons
who have significantly contributed to the
development and promotion of Philippine
culture and arts;

The authority of the CCP Board of Trustees as

National Artists Awards Committee was
reiterated in Presidential Decree No. 208
dated June 7, 1973.

(k) promulgate rules, regulations and

undertake any and all measures as may be
necessary to implement this Act. (Emphases
supplied.)

The function of the CCP Board of Trustees as

National Artists Awards Committee has been
recognized under Republic Act No. 7356:

By virtue of their respective statutory

mandates in connection with the conferment
of the National Artist Award, the NCCA and
the CCP decided to work together and jointly
administer the National Artist Award. They
reviewed the guidelines for the nomination,

Sec. 18. The National Cultural Agencies.

The [NCCA] shall coordinate with the national

selection and administration of the National

Artist Award, created a National Artist Award
Secretariat, centralized all financial resources
and management for the administration of
the National Artist Award, and added another
layer to the selection process so that more
members of the arts and culture sector of
the Philippines may be involved and
participate in the selection of National
Artists.
We have held that an administrative
regulation adopted pursuant to law has the
force and effect of law.82 Thus, the rules,
guidelines and policies regarding the Order
of National Artists jointly issued by the CCP
Board of Trustees and the NCCA pursuant to
their respective statutory mandates have the
force and effect of law. Until set aside, they
are binding upon executive and
administrative agencies,83 including the
President himself/herself as chief executor of
laws. In this connection, Section 2.5(A) of the
Implementing Rules and Regulations84 of
Executive Order No. 236, s. 2003 provides:
2.5: General Guidelines for Awards
Committees
A. National Orders of Cultural and Scientific
Merit
The existing modalities of the NCCA for
selecting recipients for the Order of National
Artists, and the Gawad sa Manlilikha ng
Bayan, and of the NAST for selecting
recipients of the Order of National Scientists,
shall remain in force. (Emphases supplied.)
Section 2.4(A) of the same implementing
rules further states:
2.4: Awards Committees
There shall be two types of awards
committees: the Committee on Honors and
the various awards committees in the
various units of the government service.
A. The Committee on Honors
The Committee on Honors serves as a
National Awards Committee. It is composed
of the following:
The Executive Secretary, Chairman
The Secretary of Foreign Affairs, ViceChairman

Head, Presidential Management Staff,

member
Presidential Assistant for Historical Affairs,
member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
All nominations from the various awards
committees must be submitted to the
Committee on Honors via the Chancellery of
Philippine Orders and State Decorations. The
Chancellery shall process nominations for the
consideration of the Committee on Honors.
The Committee on Honors shall screen and
recommend these nominations to the
President.
The Committee on Honors shall, as a general
rule, serve as a screening committee to
ensure that nominations received from the
various awards committees meet two tests:
that there has not been an abuse of
discretion in making the nomination, and
that the nominee is in good standing. Should
a nomination meet these criteria, a
recommendation to the President for
conferment shall be made.
The President of the Philippines takes the
recommendations of the Committee on
Honors in the highest consideration when
making the final decision on the conferment
of awards. (Emphasis supplied.)
Pursuant to the above provision of the
implementing rules of Executive Order No.
236, s. 2003, the authority of the Committee
on Honors is limited to determining whether
the nominations submitted by a particular
awards committee, in this case, the joint
NCCA and CCP Boards, have been tainted by
abuse of discretion, and whether the
nominees are in good standing. Should the
nominations meet these two criteria, the
Committee on Honors shall make a
recommendation to the President for
conferment of the Order of National Artists.
In view of the various stages of deliberation
in the selection process and as a
consequence of his/her duty to faithfully
enforce the relevant laws, the discretion of
the President in the matter of the Order of
National Artists is confined to the names
submitted to him/her by the NCCA and the
CCP Boards. This means that the President

could not have considered conferment of the

Order of National Artists on any person not
considered and recommended by the NCCA
and the CCP Boards. That is the proper
import of the provision of Executive Order
No. 435, s. 2005, that the NCCA and the CCP
"shall advise the President on the
conferment of the Order of National Artists."
Applying this to the instant case, the former
President could not have properly considered
respondents Guidote-Alvarez, Caparas,
Maosa and Moreno, as their names were not
recommended by the NCCA and the CCP
Boards. Otherwise, not only will the stringent
selection and meticulous screening process
be rendered futile, the respective mandates
of the NCCA and the CCP Board of Trustees
under relevant laws to administer the
conferment of Order of National Artists, draft
the rules and regulations to guide its
deliberations, formulate and implement
policies and plans, and undertake any and all
necessary measures in that regard will also
become meaningless.
Furthermore, with respect to respondent
Guidote-Alvarez who was the Executive
Director of the NCCA at that time, the
Guidelines expressly provides:
6.5 NCCA and CCP Board members and
consultants and NCCA and CCP officers and
staff are automatically disqualified from
being nominated.85
Respondent Guidote-Alvarez could not have
even been nominated, hence, she was not
qualified to be considered and conferred the
Order of National Artists at that time. The
Presidents discretion on the matter does not
extend to removing a legal impediment or
overriding a legal restriction.
From the foregoing, the advice or
recommendation of the NCCA and the CCP
Boards as to the conferment of the Order of
National Artists on Conde, Dr. Santos,
Francisco and Alcuaz was not binding on the
former President but only discretionary or
optional for her whether or not to act on such
advice or recommendation. Also, by virtue of
the power of control, the President had the
authority to alter or modify or nullify or set
aside such recommendation or advice. It was
well within the Presidents power and
discretion to proclaim all, or some or even
none of the recommendees of the CCP and
the NCCA Boards, without having to justify

his or her action. Thus, the exclusion of

Santos did not constitute grave abuse of
discretion on the part of the former
President.
The conferment of the Order of National
Artists on respondents Guidote-Alvarez,
Caparas, Maosa and Moreno was an entirely
different matter.
There is grave abuse of discretion when an
act is (1) done contrary to the Constitution,
the law or jurisprudence or (2) executed
whimsically, capriciously or arbitrarily, out of
malice, ill will or personal bias.86
There was a violation of the equal protection
clause of the Constitution87 when the former
President gave preferential treatment to
respondents Guidote-Alvarez, Caparas,
Maosa and Moreno.1wphi1 The former
Presidents constitutional duty to faithfully
execute the laws and observe the rules,
guidelines and policies of the NCCA and the
CCP as to the selection of the nominees for
conferment of the Order of National Artists
proscribed her from having a free and
uninhibited hand in the conferment of the
said award. The manifest disregard of the
rules, guidelines and processes of the NCCA
and the CCP was an arbitrary act that unduly
favored respondents Guidote-Alvarez,
Caparas, Maosa and Moreno. The
conferment of the Order of National Artists
on said respondents was therefore made
with grave abuse of discretion and should be
set aside.
While the Court invalidates today the
proclamation of respondents GuidoteAlvarez, Caparas, Maosa and Moreno as
National Artists, such action should not be
taken as a pronouncement on whether they
are worthy to be conferred that honor. Only
the President, upon the advise of the NCCA
and the CCP Boards, may determine that.
The Court simply declares that, as the former
President committed grave abuse of
discretion in issuing Proclamation Nos. 1826
to 1829 dated July 6, 2009, the said
proclamations are invalid. However, nothing
in this Decision should be read as a
disqualification on the part of respondents
Guidote-Alvarez, Caparas, Maosa and
Moreno to be considered for the honor of
National Artist in the future, subject to
compliance with the laws, rules and
regulations governing said award.

WHEREFORE, the petition is hereby

GRANTED in PART. Proclamation Nos. 1826 to
1829 dated July 6, 2009 proclaiming
respondents Cecile Guidote-Alvarez, Carlo
Magno Jose Caparas, Francisco Maosa, and
Jose Moreno, respectively, as National Artists
are declared INVALID and
SET ASIDE for having been issued with grave
abuse of discretion.
SO ORDERED.

Disini v DOJ
These consolidated petitions seek to declare
several provisions of Republic Act (R.A.)
10175, the Cybercrime Prevention Act of
2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access
to and use of the cyberspace. Using his
laptop or computer, a person can connect to
the internet, a system that links him to other
computers and enable him, among other
things, to:
1. Access virtual libraries and encyclopedias
for all kinds of information that he needs for
research, study, amusement, upliftment, or
pure curiosity;
2. Post billboard-like notices or messages,
including pictures and videos, for the general
public or for special audiences like
associates, classmates, or friends and read
postings from them;
3. Advertise and promote goods or services
and make purchases and payments;
4. Inquire and do business with institutional
entities like government agencies, banks,
stock exchanges, trade houses, credit card
companies, public utilities, hospitals, and
schools; and
5. Communicate in writing or by voice with
any person through his e-mail address or
telephone.
This is cyberspace, a system that
accommodates millions and billions of
simultaneous and ongoing individual
accesses to and uses of the internet. The
cyberspace is a boon to the need of the
current generation for greater information

and facility of communication. But all is not

well with the system since it could not filter
out a number of persons of ill will who would
want to use cyberspace technology for
mischiefs and crimes. One of them can, for
instance, avail himself of the system to
unjustly ruin the reputation of another or
bully the latter by posting defamatory
statements against him that people can
read.
And because linking with the internet opens
up a user to communications from others,
the ill-motivated can use the cyberspace for
committing theft by hacking into or
surreptitiously accessing his bank account or
credit card or defrauding him through false
representations. The wicked can use the
cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless
children who have access to the internet. For
this reason, the government has a legitimate
right to regulate the use of cyberspace and
contain and punish wrongdoings.
Notably, there are also those who would
want, like vandals, to wreak or cause havoc
to the computer systems and networks of
indispensable or highly useful institutions as
well as to the laptop or computer programs
and memories of innocent individuals. They
accomplish this by sending electronic viruses
or virtual dynamites that destroy those
computer systems, networks, programs, and
memories. The government certainly has the
duty and the right to prevent these
tomfooleries from happening and punish
their perpetrators, hence the Cybercrime
Prevention Act.
But petitioners claim that the means adopted
by the cybercrime law for regulating
undesirable cyberspace activities violate
certain of their constitutional rights. The
government of course asserts that the law
merely seeks to reasonably put order into
cyberspace activities, punish wrongdoings,
and prevent hurtful attacks on the system.
Pending hearing and adjudication of the
issues presented in these cases, on February
5, 2013 the Court extended the original 120day temporary restraining order (TRO) that it
earlier issued on October 9, 2012, enjoining
respondent government agencies from
implementing the cybercrime law until
further orders.

The Issues Presented

Petitioners challenge the constitutionality of
the following provisions of the cybercrime
law that regard certain acts as crimes and
impose penalties for their commission as
well as provisions that would enable the
government to track down and penalize
violators.
Some petitioners also raise the
constitutionality of related Articles 353, 354,
361, and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. The
following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality,
integrity and availability of computer data
and systems:
(1) Illegal Access. The access to the whole
or any part of a computer system without
right.
Petitioners contend that Section 4(a)(1) fails
to meet the strict scrutiny standard required
of laws that interfere with the fundamental
rights of the people and should thus be
struck down.
The Court has in a way found the strict
scrutiny standard, an American constitutional
construct,1 useful in determining the
constitutionality of laws that tend to target a
class of things or persons. According to this
standard, a legislative classification that
impermissibly interferes with the exercise of
fundamental right or operates to the peculiar
class disadvantage of a suspect class is
presumed unconstitutional. The burden is on
the government to prove that the
classification is necessary to achieve a
compelling state interest and that it is the
least restrictive means to protect such
interest.2 Later, the strict scrutiny standard
was used to assess 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.3
In the cases before it, the Court finds nothing
in Section 4(a)(1) that calls for the
application of the strict scrutiny standard

since no fundamental freedom, like speech,

is involved in punishing what is essentially a
condemnable act accessing the computer
system of another without right. It is a
universally condemned conduct.4
Petitioners of course fear that this section
will jeopardize the work of ethical hackers,
professionals who employ tools and
techniques used by criminal hackers but
would neither damage the target systems
nor steal information. Ethical hackers
evaluate the target systems security and
report back to the owners the vulnerabilities
they found in it and give instructions for how
these can be remedied. Ethical hackers are
the equivalent of independent auditors who
come into an organization to verify its
bookkeeping records.5
Besides, a clients engagement of an ethical
hacker requires an agreement between them
as to the extent of the search, the methods
to be used, and the systems to be tested.
This is referred to as the "get out of jail free
card."6 Since the ethical hacker does his job
with prior permission from the client, such
permission would insulate him from the
coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4. Cybercrime Offenses. The
following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality,
integrity and availability of computer data
and systems:
(3) Data Interference. The intentional or
reckless alteration, damaging, deletion or
deterioration of computer data, electronic
document, or electronic data message,
without right, including the introduction or
transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers
from overbreadth in that, while it seeks to
discourage data interference, it intrudes into
the area of protected speech and expression,
creating a chilling and deterrent effect on
these guaranteed freedoms.
Under the overbreadth doctrine, a proper
governmental purpose, constitutionally
subject to state regulation, may not be
achieved by means that unnecessarily sweep
its subject broadly, thereby invading the area

of protected freedoms.7 But Section 4(a)(3)

does not encroach on these freedoms at all.
It simply punishes what essentially is a form
of vandalism,8 the act of willfully destroying
without right the things that belong to
others, in this case their computer data,
electronic document, or electronic data
message. Such act has no connection to
guaranteed freedoms. There is no freedom to
destroy other peoples computer systems
and private documents.
All penal laws, like the cybercrime law, have
of course an inherent chilling effect, an in
terrorem effect9 or the fear of possible
prosecution that hangs on the heads of
citizens who are minded to step beyond the
boundaries of what is proper. But to prevent
the State from legislating criminal laws
because they instill such kind of fear is to
render the state powerless in addressing and
penalizing socially harmful conduct.10 Here,
the chilling effect that results in paralysis is
an illusion since Section 4(a)(3) clearly
describes the evil that it seeks to punish and
creates no tendency to intimidate the free
exercise of ones constitutional rights.
Besides, the overbreadth challenge places on
petitioners the heavy burden of proving that
under no set of circumstances will Section
4(a)(3) be valid.11 Petitioner has failed to
discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4. Cybercrime Offenses. The
following acts constitute the offense of
cybercrime punishable under this Act
(a) Offenses against the confidentiality,
integrity and availability of computer data
and systems:
(6) Cyber-squatting. The acquisition of
domain name over the internet in bad faith
to profit, mislead, destroy the reputation,
and deprive others from registering the
same, if such a domain name is:
(i) Similar, identical, or confusingly similar to
an existing trademark registered with the
appropriate government agency at the time
of the domain name registration;
(ii) Identical or in any way similar with the
name of a person other than the registrant,
in case of a personal name; and

(iii) Acquired without right or with intellectual

property interests in it.
Petitioners claim that Section 4(a)(6) or
cyber-squatting violates the equal protection
clause12 in that, not being narrowly tailored,
it will cause a user using his real name to
suffer the same fate as those who use
aliases or take the name of another in satire,
parody, or any other literary device. For
example, supposing there exists a well
known billionaire-philanthropist named "Julio
Gandolfo," the law would punish for cybersquatting both the person who registers such
name because he claims it to be his pseudoname and another who registers the name
because it happens to be his real name.
Petitioners claim that, considering the
substantial distinction between the two, the
law should recognize the difference.
But there is no real difference whether he
uses "Julio Gandolfo" which happens to be
his real name or use it as a pseudo-name for
it is the evil purpose for which he uses the
name that the law condemns. The law is
reasonable in penalizing him for acquiring
the domain name in bad faith to profit,
mislead, destroy reputation, or deprive
others who are not ill-motivated of the
rightful opportunity of registering the same.
The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal
protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4. Cybercrime Offenses. The
following acts constitute the offense of
cybercrime punishable under this Act:
b) Computer-related Offenses:
(3) Computer-related Identity Theft. The
intentional acquisition, use, misuse, transfer,
possession, alteration, or deletion of
identifying information belonging to another,
whether natural or juridical, without right:
Provided: that if no damage has yet been
caused, the penalty imposable shall be one
(1) degree lower.
Petitioners claim that Section 4(b)(3) violates
the constitutional rights to due process and
to privacy and correspondence, and
transgresses the freedom of the press.
The right to privacy, or the right to be let
alone, was institutionalized in the 1987

Constitution as a facet of the right protected

by the guarantee against unreasonable
searches and seizures.13 But the Court
acknowledged its existence as early as 1968
in Morfe v. Mutuc,14 it ruled that the right to
privacy exists independently of its
identification with liberty; it is in itself fully
deserving of constitutional protection.
Relevant to any discussion of the right to
privacy is the concept known as the "Zones
of Privacy." The Court explained in "In the
Matter of the Petition for Issuance of Writ of
Habeas Corpus of Sabio v. Senator
Gordon"15 the relevance of these zones to
the right to privacy:
Zones of privacy are recognized and
protected in our laws. 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," but also
from our adherence to the Universal
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."
Two constitutional guarantees create these
zones of privacy: (a) the right against
unreasonable searches16 and seizures,
which is the basis of the right to be let alone,
and (b) the right to privacy of communication
and correspondence.17 In assessing the
challenge that the State has impermissibly
intruded into these zones of 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.18
The usual identifying information regarding a
person includes his name, his citizenship, his
residence address, his contact number, his
place and date of birth, the name of his
spouse if any, his occupation, and similar
data.19 The law punishes those who acquire
or use such identifying information without
right, implicitly to cause damage. Petitioners
simply fail to show how government effort to
curb computer-related identity theft violates

the right to privacy and correspondence as

well as the right to due process of law.
Also, the charge of invalidity of this section
based on the overbreadth doctrine will not
hold water since the specific conducts
proscribed do not intrude into guaranteed
freedoms like speech. Clearly, what this
section regulates are specific actions: the
acquisition, use, misuse or deletion of
personal identifying data of another. There is
no fundamental right to acquire anothers
personal data.
Further, petitioners fear that Section 4(b)(3)
violates the freedom of the press in that
journalists would be hindered from accessing
the unrestricted user account of a person in
the news to secure information about him
that could be published. But this is not the
essence of identity theft that the law seeks
to prohibit and punish. Evidently, the theft of
identity information must be intended for an
illegitimate purpose. Moreover, acquiring and
disseminating information made public by
the user himself cannot be regarded as a
form of theft.
The Court has defined intent to gain as an
internal act which can be established
through the overt acts of the offender, and it
may be presumed from the furtive taking of
useful property pertaining to another, unless
special circumstances reveal a different
intent on the part of the perpetrator.20 As
such, the press, whether in quest of news
reporting or social investigation, has nothing
to fear since a special circumstance is
present to negate intent to gain which is
required by this Section.
Section 4(c)(1) of the Cybercrime Law
Sec. 4. Cybercrime Offenses. The following
acts constitute the offense of cybercrime
punishable under this Act:
(c) Content-related Offenses:
(1) Cybersex. The willful engagement,
maintenance, control, or operation, directly
or indirectly, of any lascivious exhibition of
sexual organs or sexual activity, with the aid
of a computer system, for favor or
consideration.
Petitioners claim that the above violates the
freedom of expression clause of the
Constitution.21 They express fear that

private communications of sexual character

between husband and wife or consenting
adults, which are not regarded as crimes
under the penal code, would now be
regarded as crimes when done "for favor" in
cyberspace. In common usage, the term
"favor" includes "gracious kindness," "a
special privilege or right granted or
conceded," or "a token of love (as a ribbon)
usually worn conspicuously."22 This meaning
given to the term "favor" embraces socially
tolerated trysts. The law as written would
invite law enforcement agencies into the
bedrooms of married couples or consenting
individuals.
But the deliberations of the Bicameral
Committee of Congress on this section of the
Cybercrime Prevention Act give a proper
perspective on the issue. These deliberations
show a lack of intent to penalize a "private
showing x x x between and among two
private persons x x x although that may be a
form of obscenity to some."23 The
understanding of those who drew up the
cybercrime law is that the element of
"engaging in a business" is necessary to
constitute the illegal cybersex.24 The Act
actually seeks to punish cyber prostitution,
white slave trade, and pornography for favor
and consideration. This includes interactive
prostitution and pornography, i.e., by
webcam.25
The subject of Section 4(c)(1)lascivious
exhibition of sexual organs or sexual activity
is not novel. Article 201 of the RPC
punishes "obscene publications and
exhibitions and indecent shows." The AntiTrafficking in Persons Act of 2003 penalizes
those who "maintain or hire a person to
engage in prostitution or pornography."26
The law defines prostitution as any act,
transaction, scheme, or design involving the
use of a person by another, for sexual
intercourse or lascivious conduct in
exchange for money, profit, or any other
consideration.27
The case of Nogales v. People28 shows the
extent to which the State can regulate
materials that serve no other purpose than
satisfy the market for violence, lust, or
pornography.29 The Court weighed the
property rights of individuals against the
public welfare. Private property, if containing
pornographic materials, may be forfeited and

destroyed. Likewise, engaging in sexual acts

privately through internet connection,
perceived by some as a right, has to be
balanced with the mandate of the State to
eradicate white slavery and the exploitation
of women.
In any event, consenting adults are protected
by the wealth of jurisprudence delineating
the bounds of obscenity.30 The Court will not
declare Section 4(c)(1) unconstitutional
where it stands a construction that makes it
apply only to persons engaged in the
business of maintaining, controlling, or
operating, directly or indirectly, the
lascivious exhibition of sexual organs or
sexual activity with the aid of a computer
system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Sec. 4. Cybercrime Offenses. The following
acts constitute the offense of cybercrime
punishable under this Act:
(c) Content-related Offenses:
(2) Child Pornography. The unlawful or
prohibited acts defined and punishable by
Republic Act No. 9775 or the Anti-Child
Pornography Act of 2009, committed through
a computer system: Provided, That the
penalty to be imposed shall be (1) one
degree higher than that provided for in
Republic Act No. 9775.
It seems that the above merely expands the
scope of the Anti-Child Pornography Act of
200931 (ACPA) to cover identical activities in
cyberspace. In theory, nothing prevents the
government from invoking the ACPA when
prosecuting persons who commit child
pornography using a computer system.
Actually, ACPAs definition of child
pornography already embraces the use of
"electronic, mechanical, digital, optical,
magnetic or any other means." Notably, no
one has questioned this ACPA provision.
Of course, the law makes the penalty higher
by one degree when the crime is committed
in cyberspace. But no one can complain
since the intensity or duration of penalty is a
legislative prerogative and there is rational
basis for such higher penalty.32 The
potential for uncontrolled proliferation of a
particular piece of child pornography when
uploaded in the cyberspace is incalculable.

Petitioners point out that the provision of

ACPA that makes it unlawful for any person
to "produce, direct, manufacture or create
any form of child pornography"33 clearly
relates to the prosecution of persons who aid
and abet the core offenses that ACPA seeks
to punish.34 Petitioners are wary that a
person who merely doodles on paper and
imagines a sexual abuse of a 16-year-old is
not criminally liable for producing child
pornography but one who formulates the
idea on his laptop would be. Further, if the
author bounces off his ideas on Twitter,
anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.
The question of aiding and abetting the
offense by simply commenting on it will be
discussed elsewhere below. For now the
Court must hold that the constitutionality of
Section 4(c)(2) is not successfully
challenged.
Section 4(c)(3) of the Cybercrime Law
Sec. 4. Cybercrime Offenses. The following
acts constitute the offense of cybercrime
punishable under this Act:
(c) Content-related Offenses:
(3) Unsolicited Commercial Communications.
The transmission of commercial electronic
communication with the use of computer
system which seeks to advertise, sell, or
offer for sale products and services are
prohibited unless:
(i) There is prior affirmative consent from the
recipient; or
(ii) The primary intent of the communication
is for service and/or administrative
announcements from the sender to its
existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic
communication contains a simple, valid, and
reliable way for the recipient to reject receipt
of further commercial electronic messages
(opt-out) from the same source;
(bb) The commercial electronic
communication does not purposely disguise
the source of the electronic message; and
(cc) The commercial electronic
communication does not purposely include

misleading information in any part of the

message in order to induce the recipients to
read the message.
The above penalizes the transmission of
unsolicited commercial communications, also
known as "spam." The term "spam" surfaced
in early internet chat rooms and interactive
fantasy games. One who repeats the same
sentence or comment was said to be making
a "spam." The term referred to a Monty
Pythons Flying Circus scene in which actors
would keep saying "Spam, Spam, Spam, and
Spam" when reading options from a menu.35
The Government, represented by the
Solicitor General, points out that unsolicited
commercial communications or spams are a
nuisance that wastes the storage and
network capacities of internet service
providers, reduces the efficiency of
commerce and technology, and interferes
with the owners peaceful enjoyment of his
property. Transmitting spams amounts to
trespass to ones privacy since the person
sending out spams enters the recipients
domain without prior permission. The OSG
contends that commercial speech enjoys less
protection in law.

But, firstly, the government presents no

basis for holding that unsolicited electronic
ads reduce the "efficiency of computers."
Secondly, people, before the arrival of the
age of computers, have already been
receiving such unsolicited ads by mail. These
have never been outlawed as nuisance since
people might have interest in such ads. What
matters is that the recipient has the option of
not opening or reading these mail ads. That
is true with spams. Their recipients always
have the option to delete or not to read
them.
To prohibit the transmission of unsolicited
ads would deny a person the right to read his
emails, even unsolicited commercial ads
addressed to him. Commercial speech is a
separate category of speech which is not
accorded the same level of protection as that
given to other constitutionally guaranteed
forms of expression but is nonetheless
entitled to protection.36 The State cannot
rob him of this right without violating the
constitutionally guaranteed freedom of

expression. Unsolicited advertisements are

legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of
both the penal code provisions on libel as
well as Section 4(c)(4) of the Cybercrime
Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. A libel is public
and malicious imputation of a crime, or of a
vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance
tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or
to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. Every
defamatory imputation is presumed to be
malicious, even if it be true, if no good
intention and justifiable motive for making it
is shown, except in the following cases:
1. A private communication made by any
person to another in the performance of any
legal, moral or social duty; and
2. A fair and true report, made in good faith,
without any comments or remarks, of any
judicial, legislative or other official
proceedings which are not of confidential
nature, or of any statement, report or speech
delivered in said proceedings, or of any other
act performed by public officers in the
exercise of their functions.
Art. 355. Libel means by writings or similar
means. A libel committed by means of
writing, printing, lithography, engraving,
radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or
any similar means, shall be punished by
prision correccional in its minimum and
medium periods or a fine ranging from 200
to 6,000 pesos, or both, in addition to the
civil action which may be brought by the
offended party.
The libel provision of the cybercrime law, on
the other hand, merely incorporates to form
part of it the provisions of the RPC on libel.
Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. The following

acts constitute the offense of cybercrime
punishable under this Act:
(c) Content-related Offenses:
(4) Libel. The unlawful or prohibited acts
of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed
through a computer system or any other
similar means which may be devised in the
future.
Petitioners lament that libel provisions of the
penal code37 and, in effect, the libel
provisions of the cybercrime law carry with
them the requirement of "presumed malice"
even when the latest jurisprudence already
replaces it with the higher standard of
"actual malice" as a basis for conviction.38
Petitioners argue that inferring "presumed
malice" from the accuseds defamatory
statement by virtue of Article 354 of the
penal code infringes on his constitutionally
guaranteed freedom of expression.
Petitioners would go further. They contend
that the laws on libel should be stricken
down as unconstitutional for otherwise good
jurisprudence requiring "actual malice" could
easily be overturned as the Court has done
in Fermin v. People39 even where the
offended parties happened to be public
figures.
The elements of libel are: (a) the allegation
of a discreditable act or condition concerning
another; (b) publication of the charge; (c)
identity of the person defamed; and (d)
existence of malice.40
There is "actual malice" or malice in fact41
when the offender makes the defamatory
statement with the knowledge that it is false
or with reckless disregard of whether it was
false or not.42 The reckless disregard
standard used here requires a high degree of
awareness of probable falsity. There must be
sufficient evidence to permit the conclusion
that the accused in fact entertained serious
doubts as to the truth of the statement he
published. Gross or even extreme negligence
is not sufficient to establish actual malice.43
The prosecution bears the burden of proving
the presence of actual malice in instances
where such element is required to establish
guilt. The defense of absence of actual
malice, even when the statement turns out

to be false, is available where the offended

party is a public official or a public figure, as
in the cases of Vasquez (a barangay official)
and Borjal (the Executive Director, First
National Conference on Land Transportation).
Since the penal code and implicitly, the
cybercrime law, mainly target libel against
private persons, the Court recognizes that
these laws imply a stricter standard of
"malice" to convict the author of a
defamatory statement where the offended
party is a public figure. Societys interest and
the maintenance of good government
demand a full discussion of public affairs.44

Adonis v. Republic of the Philippines,47 the

United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to
the effect that penal defamation laws should
include the defense of truth.

Parenthetically, the Court cannot accept the

proposition that its ruling in Fermin
disregarded the higher standard of actual
malice or malice in fact when it found
Cristinelli Fermin guilty of committing libel
against complainants who were public
figures. Actually, the Court found the
presence of malice in fact in that case. Thus:

Art. 361. Proof of the truth. In every

criminal prosecution for libel, the truth may
be given in evidence to the court and if it
appears that the matter charged as libelous
is true, and, moreover, that it was published
with good motives and for justifiable ends,
the defendants shall be acquitted.

It can be gleaned from her testimony that

petitioner had the motive to make
defamatory imputations against
complainants. Thus, petitioner cannot, by
simply making a general denial, convince us
that there was no malice on her part. Verily,
not only was there malice in law, the article
being malicious in itself, but there was also
malice in fact, as there was motive to talk ill
against complainants during the electoral
campaign. (Emphasis ours)
Indeed, the Court took into account the
relatively wide leeway given to utterances
against public figures in the above case,
cinema and television personalities, when it
modified the penalty of imprisonment to just
a fine of P6,000.00.
But, where the offended party is a private
individual, the prosecution need not prove
the presence of malice. The law explicitly
presumes its existence (malice in law) from
the defamatory character of the assailed
statement.45 For his defense, the accused
must show that he has a justifiable reason
for the defamatory statement even if it was
in fact true.46
Petitioners peddle the view that both the
penal code and the Cybercrime Prevention
Act violate the countrys obligations under
the International Covenant of Civil and
Political Rights (ICCPR). They point out that in

But General Comment 34 does not say that

the truth of the defamatory statement should
constitute an all-encompassing defense. As it
happens, Article 361 recognizes truth as a
defense but under the condition that the
accused has been prompted in making the
statement by good motives and for justifiable
ends. Thus:

Proof of the truth of an imputation of an act

or omission not constituting a crime shall not
be admitted, unless the imputation shall
have been made against Government
employees with respect to facts related to
the discharge of their official duties.
In such cases if the defendant proves the
truth of the imputation made by him, he shall
be acquitted.
Besides, the UNHRC did not actually enjoin
the Philippines, as petitioners urge, to
decriminalize libel. It simply suggested that
defamation laws be crafted with care to
ensure that they do not stifle freedom of
expression.48 Indeed, the ICCPR states that
although everyone should enjoy freedom of
expression, its exercise carries with it special
duties and responsibilities. Free speech is not
absolute. It is subject to certain restrictions,
as may be necessary and as may be
provided by law.49
The Court agrees with the Solicitor General
that libel is not a constitutionally protected
speech and that the government has an
obligation to protect private individuals from
defamation. Indeed, cyberlibel is actually not
a new crime since Article 353, in relation to
Article 355 of the penal code, already
punishes it. In effect, Section 4(c)(4) above
merely affirms that online defamation
constitutes "similar means" for committing
libel.

But the Courts acquiescence goes only

insofar as the cybercrime law penalizes the
author of the libelous statement or article.
Cyberlibel brings with it certain intricacies,
unheard of when the penal code provisions
on libel were enacted. The culture associated
with internet media is distinct from that of
print.
The internet is characterized as encouraging
a freewheeling, anything-goes writing
style.50 In a sense, they are a world apart in
terms of quickness of the readers reaction to
defamatory statements posted in
cyberspace, facilitated by one-click reply
options offered by the networking site as well
as by the speed with which such reactions
are disseminated down the line to other
internet users. Whether these reactions to
defamatory statement posted on the internet
constitute aiding and abetting libel, acts that
Section 5 of the cybercrime law punishes, is
another matter that the Court will deal with
next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Sec. 5. Other Offenses. The following acts
shall also constitute an offense:
(a) Aiding or Abetting in the Commission of
Cybercrime. Any person who willfully abets
or aids in the commission of any of the
offenses enumerated in this Act shall be held
liable.
(b) Attempt in the Commission of
Cybercrime. Any person who willfully
attempts to commit any of the offenses
enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of
Section 5 that renders criminally liable any
person who willfully abets or aids in the
commission or attempts to commit any of
the offenses enumerated as cybercrimes. It
suffers from overbreadth, creating a chilling
and deterrent effect on protected expression.
The Solicitor General contends, however,
that the current body of jurisprudence and
laws on aiding and abetting sufficiently
protects the freedom of expression of
"netizens," the multitude that avail
themselves of the services of the internet.
He points out that existing laws and
jurisprudence sufficiently delineate the
meaning of "aiding or abetting" a crime as to
protect the innocent. The Solicitor General

argues that plain, ordinary, and common

usage is at times sufficient to guide law
enforcement agencies in enforcing the law.51
The legislature is not required to define
every single word contained in the laws they
craft.
Aiding or abetting has of course well-defined
meaning and application in existing laws.
When a person aids or abets another in
destroying a forest,52 smuggling
merchandise into the country,53 or
interfering in the peaceful picketing of
laborers,54 his action is essentially physical
and so is susceptible to easy assessment as
criminal in character. These forms of aiding
or abetting lend themselves to the tests of
common sense and human experience.
But, when it comes to certain cybercrimes,
the waters are muddier and the line of sight
is somewhat blurred. The idea of "aiding or
abetting" wrongdoings online threatens the
heretofore popular and unchallenged
dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital
Consumer Report, 33% of Filipinos have
accessed the internet within a year,
translating to about 31 million users.55
Based on a recent survey, the Philippines
ranks 6th in the top 10 most engaged
countries for social networking.56 Social
networking sites build social relations among
people who, for example, share interests,
activities, backgrounds, or real-life
connections.57
Two of the most popular of these sites are
Facebook and Twitter. As of late 2012, 1.2
billion people with shared interests use
Facebook to get in touch.58 Users register at
this site, create a personal profile or an open
book of who they are, add other users as
friends, and exchange messages, including
automatic notifications when they update
their profile.59 A user can post a statement,
a photo, or a video on Facebook, which can
be made visible to anyone, depending on the
users privacy settings.
If the post is made available to the public,
meaning to everyone and not only to his
friends, anyone on Facebook can react to the
posting, clicking any of several buttons of
preferences on the programs screen such as
"Like," "Comment," or "Share." "Like"
signifies that the reader likes the posting

while "Comment" enables him to post online

his feelings or views about the same, such as
"This is great!" When a Facebook user
"Shares" a posting, the original "posting" will
appear on his own Facebook profile,
consequently making it visible to his downline Facebook Friends.
Twitter, on the other hand, is an internet
social networking and microblogging service
that enables its users to send and read short
text-based messages of up to 140
characters. These are known as "Tweets."
Microblogging is the practice of posting small
pieces of digital contentwhich could be in
the form of text, pictures, links, short videos,
or other mediaon the internet. Instead of
friends, a Twitter user has "Followers," those
who subscribe to this particular users posts,
enabling them to read the same, and
"Following," those whom this particular user
is subscribed to, enabling him to read their
posts. Like Facebook, a Twitter user can
make his tweets available only to his
Followers, or to the general public. If a post is
available to the public, any Twitter user can
"Retweet" a given posting. Retweeting is just
reposting or republishing another persons
tweet without the need of copying and
pasting it.
In the cyberworld, there are many actors: a)
the blogger who originates the assailed
statement; b) the blog service provider like
Yahoo; c) the internet service provider like
PLDT, Smart, Globe, or Sun; d) the internet
caf that may have provided the computer
used for posting the blog; e) the person who
makes a favorable comment on the blog; and
f) the person who posts a link to the blog
site.60 Now, suppose Maria (a blogger)
maintains a blog on WordPress.com (blog
service provider). She needs the internet to
access her blog so she subscribes to Sun
Broadband (Internet Service Provider).
One day, Maria posts on her internet account
the statement that a certain married public
official has an illicit affair with a movie star.
Linda, one of Marias friends who sees this
post, comments online, "Yes, this is so true!
They are so immoral." Marias original post is
then multiplied by her friends and the latters
friends, and down the line to friends of
friends almost ad infinitum. Nena, who is a
stranger to both Maria and Linda, comes
across this blog, finds it interesting and so

shares the link to this apparently defamatory

blog on her Twitter account. Nenas
"Followers" then "Retweet" the link to that
blog site.
Pamela, a Twitter user, stumbles upon a
random persons "Retweet" of Nenas original
tweet and posts this on her Facebook
account. Immediately, Pamelas Facebook
Friends start Liking and making Comments
on the assailed posting. A lot of them even
press the Share button, resulting in the
further spread of the original posting into
tens, hundreds, thousands, and greater
postings.
The question is: are online postings such as
"Liking" an openly defamatory statement,
"Commenting" on it, or "Sharing" it with
others, to be regarded as "aiding or
abetting?" In libel in the physical world, if
Nestor places on the office bulletin board a
small poster that says, "Armand is a thief!,"
he could certainly be charged with libel. If
Roger, seeing the poster, writes on it, "I like
this!," that could not be libel since he did not
author the poster. If Arthur, passing by and
noticing the poster, writes on it, "Correct!,"
would that be libel? No, for he merely
expresses agreement with the statement on
the poster. He still is not its author. Besides,
it is not clear if aiding or abetting libel in the
physical world is a crime.
But suppose Nestor posts the blog, "Armand
is a thief!" on a social networking site. Would
a reader and his Friends or Followers,
availing themselves of any of the "Like,"
"Comment," and "Share" reactions, be guilty
of aiding or abetting libel? And, in the
complex world of cyberspace expressions of
thoughts, when will one be liable for aiding
or abetting cybercrimes? Where is the venue
of the crime?
Except for the original author of the assailed
statement, the rest (those who pressed Like,
Comment and Share) are essentially kneejerk sentiments of readers who may think
little or haphazardly of their response to the
original posting. Will they be liable for aiding
or abetting? And, considering the inherent
impossibility of joining hundreds or
thousands of responding "Friends" or
"Followers" in the criminal charge to be filed
in court, who will make a choice as to who
should go to jail for the outbreak of the
challenged posting?

The old parameters for enforcing the

traditional form of libel would be a square
peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts
a cyber libel law that takes into account its
unique circumstances and culture, such law
will tend to create a chilling effect on the
millions that use this new medium of
communication in violation of their
constitutionally-guaranteed right to freedom
of expression.
The United States Supreme Court faced the
same issue in Reno v. American Civil
Liberties Union,61 a case involving the
constitutionality of the Communications
Decency Act of 1996. The law prohibited (1)
the knowing transmission, by means of a
telecommunications device, of
"obscene or indecent" communications to
any recipient under 18 years of age; and (2)
the knowing use of an interactive computer
service to send to a specific person or
persons under 18 years of age or to display
in a manner available to a person under 18
years of age communications that, in
context, depict or describe, in terms
"patently offensive" as measured by
contemporary community standards, sexual
or excretory activities or organs.
Those who challenged the Act claim that the
law violated the First Amendments
guarantee of freedom of speech for being
overbroad. The U.S. Supreme Court agreed
and ruled:
The vagueness of the Communications
Decency Act of 1996 (CDA), 47 U.S.C.S. 223,
is a matter of special concern for two
reasons. First, the CDA is a content-based
regulation of speech. The vagueness of such
a regulation raises special U.S. Const.
amend. I concerns because of its obvious
chilling effect on free speech. Second, the
CDA is a criminal statute. In addition to the
opprobrium and stigma of a criminal
conviction, the CDA threatens violators with
penalties including up to two years in prison
for each act of violation. The severity of
criminal sanctions may well cause speakers
to remain silent rather than communicate
even arguably unlawful words, ideas, and
images. As a practical matter, this increased
deterrent effect, coupled with the risk of
discriminatory enforcement of vague
regulations, poses greater U.S. Const.

amend. I concerns than those implicated by

certain civil regulations.
The Communications Decency Act of 1996
(CDA), 47 U.S.C.S. 223, presents a great
threat of censoring speech that, in fact, falls
outside the statute's scope. Given the vague
contours of the coverage of the statute, it
unquestionably silences some speakers
whose messages would be entitled to
constitutional protection. That danger
provides further reason for insisting that the
statute not be overly broad. The CDAs
burden on protected speech cannot be
justified if it could be avoided by a more
carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a
persons image with just one click of the
mouse. Scurrilous statements can spread
and travel fast across the globe like bad
news. Moreover, cyberlibel often goes hand
in hand with cyberbullying that oppresses
the victim, his relatives, and friends, evoking
from mild to disastrous reactions. Still, a
governmental purpose, which seeks to
regulate the use of this cyberspace
communication technology to protect a
persons reputation and peace of mind,
cannot adopt means that will unnecessarily
and broadly sweep, invading the area of
protected freedoms.62
If such means are adopted, self-inhibition
borne of fear of what sinister predicaments
await internet users will suppress otherwise
robust discussion of public issues.
Democracy will be threatened and with it, all
liberties. Penal laws should provide
reasonably clear guidelines for law
enforcement officials and triers of facts to
prevent arbitrary and discriminatory
enforcement.63 The terms "aiding or
abetting" constitute broad sweep that
generates chilling effect on those who
express themselves through cyberspace
posts, comments, and other messages.64
Hence, Section 5 of the cybercrime law that
punishes "aiding or abetting" libel on the
cyberspace is a nullity.
When a penal statute encroaches upon the
freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine
is acceptable. The inapplicability of the
doctrine must be carefully delineated. As
Justice Antonio T. Carpio explained in his
dissent in Romualdez v. Commission on

Elections,65 "we must view these statements

of the Court on the inapplicability of the
overbreadth and vagueness doctrines to
penal statutes as appropriate only insofar as
these doctrines are used to mount facial
challenges to penal statutes not involving
free speech."
In an "as applied" challenge, the petitioner
who claims a violation of his constitutional
right can raise any constitutional ground
absence of due process, lack of fair notice,
lack of ascertainable standards, overbreadth,
or vagueness. Here, one can challenge the
constitutionality of a statute only if he
asserts a violation of his own rights. It
prohibits one from assailing the
constitutionality of the statute based solely
on the violation of the rights of third persons
not before the court. This rule is also known
as the prohibition against third-party
standing.66
But this rule admits of exceptions. A
petitioner may for instance mount a "facial"
challenge to the constitutionality of a statute
even if he claims no violation of his own
rights under the assailed statute where it
involves free speech on grounds of
overbreadth or vagueness of the statute.
The rationale for this exception is to counter
the "chilling effect" on protected speech that
comes from statutes violating free speech. A
person who does not know whether his
speech constitutes a crime under an
overbroad or vague law may simply restrain
himself from speaking in order to avoid being
charged of a crime. The overbroad or vague
law thus chills him into silence.67
As already stated, the cyberspace is an
incomparable, pervasive medium of
communication. It is inevitable that any
government threat of punishment regarding
certain uses of the medium creates a chilling
effect on the constitutionally-protected
freedom of expression of the great masses
that use it. In this case, the particularly
complex web of interaction on social media
websites would give law enforcers such
latitude that they could arbitrarily or
selectively enforce the law.
Who is to decide when to prosecute persons
who boost the visibility of a posting on the
internet by liking it? Netizens are not given
"fair notice" or warning as to what is criminal

conduct and what is lawful conduct. When a

case is filed, how will the court ascertain
whether or not one netizens comment aided
and abetted a cybercrime while another
comment did not?
Of course, if the "Comment" does not merely
react to the original posting but creates an
altogether new defamatory story against
Armand like "He beats his wife and children,"
then that should be considered an original
posting published on the internet. Both the
penal code and the cybercrime law clearly
punish authors of defamatory publications.
Make no mistake, libel destroys reputations
that society values. Allowed to cascade in
the internet, it will destroy relationships and,
under certain circumstances, will generate
enmity and tension between social or
economic groups, races, or religions,
exacerbating existing tension in their
relationships.
In regard to the crime that targets child
pornography, when "Google procures, stores,
and indexes child pornography and facilitates
the completion of transactions involving the
dissemination of child pornography," does
this make Google and its users aiders and
abettors in the commission of child
pornography crimes?68 Byars highlights a
feature in the American law on child
pornography that the Cybercrimes law lacks
the exemption of a provider or notably a
plain user of interactive computer service
from civil liability for child pornography as
follows:
No provider or user of an interactive
computer service shall be treated as the
publisher or speaker of any information
provided by another information content
provider and cannot be held civilly liable for
any action voluntarily taken in good faith to
restrict access to or availability of material
that the provider or user considers to be
obscene...whether or not such material is
constitutionally protected.69
When a person replies to a Tweet containing
child pornography, he effectively republishes
it whether wittingly or unwittingly. Does this
make him a willing accomplice to the
distribution of child pornography? When a
user downloads the Facebook mobile
application, the user may give consent to
Facebook to access his contact details. In this
way, certain information is forwarded to third

parties and unsolicited commercial

communication could be disseminated on the
basis of this information.70 As the source of
this information, is the user aiding the
distribution of this communication? The
legislature needs to address this clearly to
relieve users of annoying fear of possible
criminal prosecution.
Section 5 with respect to Section 4(c)(4) is
unconstitutional. Its vagueness raises
apprehension on the part of internet users
because of its obvious chilling effect on the
freedom of expression, especially since the
crime of aiding or abetting ensnares all the
actors in the cyberspace front in a fuzzy way.
What is more, as the petitioners point out,
formal crimes such as libel are not
punishable unless consummated.71 In the
absence of legislation tracing the interaction
of netizens and their level of responsibility
such as in other countries, Section 5, in
relation to Section 4(c)(4) on Libel, Section
4(c)(3) on Unsolicited Commercial
Communications, and Section 4(c)(2) on
Child Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the
commission of cybercrimes under Section 5
should be permitted to apply to Section 4(a)
(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of
Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery,
Section 4(b)(2) on Computer-related Fraud,
Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex. None
of these offenses borders on the exercise of
the freedom of expression.
The crime of willfully attempting to commit
any of these offenses is for the same reason
not objectionable. A hacker may for instance
have done all that is necessary to illegally
access another partys computer system but
the security employed by the systems lawful
owner could frustrate his effort. Another
hacker may have gained access to
usernames and passwords of others but fail
to use these because the system supervisor
is alerted.72 If Section 5 that punishes any
person who willfully attempts to commit this
specific offense is not upheld, the owner of
the username and password could not file a
complaint against him for attempted

hacking. But this is not right. The hacker

should not be freed from liability simply
because of the vigilance of a lawful owner or
his supervisor.
Petitioners of course claim that Section 5
lacks positive limits and could cover the
innocent.73 While this may be true with
respect to cybercrimes that tend to sneak
past the area of free expression, any attempt
to commit the other acts specified in Section
4(a)(1), Section 4(a)(2), Section 4(a)(3),
Section 4(a)(4), Section 4(a)(5), Section 4(a)
(6), Section 4(b)(1), Section 4(b)(2), Section
4(b)(3), and Section 4(c)(1) as well as the
actors aiding and abetting the commission of
such acts can be identified with some
reasonable certainty through adroit tracking
of their works. Absent concrete proof of the
same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Sec. 6. All crimes defined and penalized by
the Revised Penal Code, as amended, and
special laws, if committed by, through and
with the use of information and
communications technologies shall be
covered by the relevant provisions of this
Act: Provided, That the penalty to be
imposed shall be one (1) degree higher than
that provided for by the Revised Penal Code,
as amended, and special laws, as the case
may be.
Section 6 merely makes commission of
existing crimes through the internet a
qualifying circumstance. As the Solicitor
General points out, there exists a substantial
distinction between crimes committed
through the use of information and
communications technology and similar
crimes committed using other means. In
using the technology in question, the
offender often evades identification and is
able to reach far more victims or cause
greater harm. The distinction, therefore,
creates a basis for higher penalties for
cybercrimes.
Section 7 of the Cybercrime Law
Sec. 7. Liability under Other Laws. A
prosecution under this Act shall be without
prejudice to any liability for violation of any
provision of the Revised Penal Code, as
amended, or special laws.

The Solicitor General points out that Section

7 merely expresses the settled doctrine that
a single set of acts may be prosecuted and
penalized simultaneously under two laws, a
special law and the Revised Penal Code.
When two different laws define two crimes,
prior jeopardy as to one does not bar
prosecution of the other although both
offenses arise from the same fact, if each
crime involves some important act which is
not an essential element of the other.74 With
the exception of the crimes of online libel
and online child pornography, the Court
would rather leave the determination of the
correct application of Section 7 to actual
cases.
Online libel is different. There should be no
question that if the published material on
print, said to be libelous, is again posted
online or vice versa, that identical material
cannot be the subject of two separate libels.
The two offenses, one a violation of Article
353 of the Revised Penal Code and the other
a violation of Section 4(c)(4) of R.A. 10175
involve essentially the same elements and
are in fact one and the same offense. Indeed,
the OSG itself claims that online libel under
Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section
4(c)(4) merely establishes the computer
system as another means of publication.75
Charging the offender under both laws would
be a blatant violation of the proscription
against double jeopardy.76
The same is true with child pornography
committed online. Section 4(c)(2) merely
expands the ACPAs scope so as to include
identical activities in cyberspace. As
previously discussed, ACPAs definition of
child pornography in fact already covers the
use of "electronic, mechanical, digital,
optical, magnetic or any other means." Thus,
charging the offender under both Section
4(c)(2) and ACPA would likewise be
tantamount to a violation of the
constitutional prohibition against double
jeopardy.

amount commensurate to the damage

incurred or both.
Any person found guilty of the punishable act
under Section 4(a)(5) shall be punished with
imprisonment of prision mayor or a fine of
not more than Five hundred thousand pesos
(PhP500,000.00) or both.
If punishable acts in Section 4(a) are
committed against critical infrastructure, the
penalty of reclusion temporal or a fine of at
least Five hundred thousand pesos
(PhP500,000.00) up to maximum amount
commensurate to the damage incurred or
both, shall be imposed.
Any person found guilty of any of the
punishable acts enumerated in Section 4(c)
(1) of this Act shall be punished with
imprisonment of prision mayor or a fine of at
least Two hundred thousand pesos
(PhP200,000.00) but not exceeding One
million pesos (PhP1,000,000.00) or both.
Any person found guilty of any of the
punishable acts enumerated in Section 4(c)
(2) of this Act shall be punished with the
penalties as enumerated in Republic Act No.
9775 or the "Anti-Child Pornography Act of
2009:" Provided, That the penalty to be
imposed shall be one (1) degree higher than
that provided for in Republic Act No. 9775, if
committed through a computer system.
Any person found guilty of any of the
punishable acts enumerated in Section 4(c)
(3) shall be punished with imprisonment of
arresto mayor or a fine of at least Fifty
thousand pesos (PhP50,000.00) but not
exceeding Two hundred fifty thousand pesos
(PhP250,000.00) or both.

Section 8 of the Cybercrime Law

Any person found guilty of any of the

punishable acts enumerated in Section 5
shall be punished with imprisonment one (1)
degree lower than that of the prescribed
penalty for the offense or a fine of at least
One hundred thousand pesos
(PhP100,000.00) but not exceeding Five
hundred thousand pesos (PhP500,000.00) or
both.

Sec. 8. Penalties. Any person found guilty

of any of the punishable acts enumerated in
Sections 4(a) and 4(b) of this Act shall be
punished with imprisonment of prision mayor
or a fine of at least Two hundred thousand
pesos (PhP200,000.00) up to a maximum

Section 8 provides for the penalties for the

following crimes: Sections 4(a) on Offenses
Against the Confidentiality, Integrity and
Availability of Computer Data and Systems;
4(b) on Computer-related Offenses; 4(a)(5)
on Misuse of Devices; when the crime

punishable under 4(a) is committed against

critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on
Unsolicited Commercial Communications;
and Section 5 on Aiding or Abetting, and
Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the
commission of crimes is as a rule a
legislative prerogative. Here the legislature
prescribed a measure of severe penalties for
what it regards as deleterious cybercrimes.
They appear proportionate to the evil sought
to be punished. The power to determine
penalties for offenses is not diluted or
improperly wielded simply because at some
prior time the act or omission was but an
element of another offense or might just
have been connected with another crime.77
Judges and magistrates can only interpret
and apply them and have no authority to
modify or revise their range as determined
by the legislative department.
The courts should not encroach on this
prerogative of the lawmaking body.78
Section 12 of the Cybercrime Law
Sec. 12. Real-Time Collection of Traffic Data.
Law enforcement authorities, with due
cause, shall be authorized to collect or record
by technical or electronic means traffic data
in real-time associated with specified
communications transmitted by means of a
computer system.
Traffic data refer only to the communications
origin, destination, route, time, date, size,
duration, or type of underlying service, but
not content, nor identities.
All other data to be collected or seized or
disclosed will require a court warrant.
Service providers are required to cooperate
and assist law enforcement authorities in the
collection or recording of the above-stated
information.
The court warrant required under this section
shall only be issued or granted upon written
application and the examination under oath
or affirmation of the applicant and the
witnesses he may produce and the showing:
(1) that there are reasonable grounds to
believe that any of the crimes enumerated
hereinabove has been committed, or is being
committed, or is about to be committed; (2)

that there are reasonable grounds to believe

that evidence that will be obtained is
essential to the conviction of any person for,
or to the solution of, or to the prevention of,
any such crimes; and (3) that there are no
other means readily available for obtaining
such evidence.
Petitioners assail the grant to law
enforcement agencies of the power to collect
or record traffic data in real time as tending
to curtail civil liberties or provide
opportunities for official abuse. They claim
that data showing where digital messages
come from, what kind they are, and where
they are destined need not be incriminating
to their senders or recipients before they are
to be protected. Petitioners invoke the right
of every individual to privacy and to be
protected from government snooping into
the messages or information that they send
to one another.
The first question is whether or not Section
12 has a proper governmental purpose since
a law may require the disclosure of matters
normally considered private but then only
upon showing that such requirement has a
rational relation to the purpose of the law,79
that there is a compelling State interest
behind the law, and that the provision itself
is narrowly drawn.80 In assessing regulations
affecting privacy rights, courts should
balance the legitimate concerns of the State
against constitutional guarantees.81
Undoubtedly, the State has a compelling
interest in enacting the cybercrime law for
there is a need to put order to the
tremendous activities in cyberspace for
public good.82 To do this, it is within the
realm of reason that the government should
be able to monitor traffic data to enhance its
ability to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which
the collection or recording of traffic data is a
part, aims to provide law enforcement
authorities with the power they need for
spotting, preventing, and investigating
crimes committed in cyberspace. Crimefighting is a state business. Indeed, as Chief
Justice Sereno points out, the Budapest
Convention on Cybercrimes requires
signatory countries to adopt legislative
measures to empower state authorities to
collect or record "traffic data, in real time,
associated with specified

communications."83 And this is precisely

what Section 12 does. It empowers law
enforcement agencies in this country to
collect or record such data.
But is not evidence of yesterdays traffic
data, like the scene of the crime after it has
been committed, adequate for fighting
cybercrimes and, therefore, real-time data is
superfluous for that purpose? Evidently, it is
not. Those who commit the crimes of
accessing a computer system without
right,84 transmitting viruses,85 lasciviously
exhibiting sexual organs or sexual activity for
favor or consideration;86 and producing child
pornography87 could easily evade detection
and prosecution by simply moving the
physical location of their computers or
laptops from day to day. In this digital age,
the wicked can commit cybercrimes from
virtually anywhere: from internet cafs, from
kindred places that provide free internet
services, and from unregistered mobile
internet connectors. Criminals using
cellphones under pre-paid arrangements and
with unregistered SIM cards do not have
listed addresses and can neither be located
nor identified. There are many ways the
cyber criminals can quickly erase their
tracks. Those who peddle child pornography
could use relays of computers to mislead law
enforcement authorities regarding their
places of operations. Evidently, it is only realtime traffic data collection or recording and a
subsequent recourse to court-issued search
and seizure warrant that can succeed in
ferreting them out.
Petitioners of course point out that the
provisions of Section 12 are too broad and do
not provide ample safeguards against
crossing legal boundaries and invading the
peoples right to privacy. The concern is
understandable. Indeed, the Court
recognizes in Morfe v. Mutuc88 that certain
constitutional guarantees work together to
create zones of privacy wherein
governmental powers may not intrude, and
that there exists an independent
constitutional right of privacy. Such right to
be left alone has been regarded as the
beginning of all freedoms.89
But that right is not unqualified. In Whalen v.
Roe,90 the United States Supreme Court
classified privacy into two categories:
decisional privacy and informational privacy.

Decisional privacy involves the right to

independence in making certain important
decisions, while informational privacy refers
to the interest in avoiding disclosure of
personal matters. It is the latter rightthe
right to informational privacythat those
who oppose government collection or
recording of traffic data in real-time seek to
protect.
Informational privacy has two aspects: the
right not to have private information
disclosed, and the right to live freely without
surveillance and intrusion.91 In determining
whether or not a matter is entitled to the
right to privacy, this Court has laid down a
two-fold test. The first is a subjective test,
where one claiming the right must have an
actual or legitimate expectation of privacy
over a certain matter. The second is an
objective test, where his or her expectation
of privacy must be one society is prepared to
accept as objectively reasonable.92
Since the validity of the cybercrime law is
being challenged, not in relation to its
application to a particular person or group,
petitioners challenge to Section 12 applies
to all information and communications
technology (ICT) users, meaning the large
segment of the population who use all sorts
of electronic devices to communicate with
one another. Consequently, the expectation
of privacy is to be measured from the
general publics point of view. Without
reasonable expectation of privacy, the right
to it would have no basis in fact.
As the Solicitor General points out, an
ordinary ICT user who courses his
communication through a service provider,
must of necessity disclose to the latter, a
third person, the traffic data needed for
connecting him to the recipient ICT user. For
example, an ICT user who writes a text
message intended for another ICT user must
furnish his service provider with his
cellphone number and the cellphone number
of his recipient, accompanying the message
sent. It is this information that creates the
traffic data. Transmitting communications is
akin to putting a letter in an envelope
properly addressed, sealing it closed, and
sending it through the postal service. Those
who post letters have no expectations that
no one will read the information appearing
outside the envelope.

Computer datamessages of all kinds

travel across the internet in packets and in a
way that may be likened to parcels of letters
or things that are sent through the posts.
When data is sent from any one source, the
content is broken up into packets and around
each of these packets is a wrapper or header.
This header contains the traffic data:
information that tells computers where the
packet originated, what kind of data is in the
packet (SMS, voice call, video, internet chat
messages, email, online browsing data, etc.),
where the packet is going, and how the
packet fits together with other packets.93
The difference is that traffic data sent
through the internet at times across the
ocean do not disclose the actual names and
addresses (residential or office) of the sender
and the recipient, only their coded internet
protocol (IP) addresses. The packets travel
from one computer system to another where
their contents are pieced back together.
Section 12 does not permit law enforcement
authorities to look into the contents of the
messages and uncover the identities of the
sender and the recipient.
For example, when one calls to speak to
another through his cellphone, the service
providers communications system will put
his voice message into packets and send
them to the other persons cellphone where
they are refitted together and heard. The
latters spoken reply is sent to the caller in
the same way. To be connected by the
service provider, the sender reveals his
cellphone number to the service provider
when he puts his call through. He also
reveals the cellphone number to the person
he calls. The other ways of communicating
electronically follow the same basic pattern.

except through some service providers to

whom they must submit certain traffic data
that are needed for a successful cyberspace
communication. The conveyance of this data
takes them out of the private sphere, making
the expectation to privacy in regard to them
an expectation that society is not prepared
to recognize as reasonable.
The Court, however, agrees with Justices
Carpio and Brion that when seemingly
random bits of traffic data are gathered in
bulk, pooled together, and analyzed, they
reveal patterns of activities which can then
be used to create profiles of the persons
under surveillance. With enough traffic data,
analysts may be able to determine a
persons close associations, religious views,
political affiliations, even sexual preferences.
Such information is likely beyond what the
public may expect to be disclosed, and
clearly falls within matters protected by the
right to privacy. But has the procedure that
Section 12 of the law provides been drawn
narrowly enough to protect individual rights?
Section 12 empowers law enforcement
authorities, "with due cause," to collect or
record by technical or electronic means
traffic data in real-time. Petitioners point out
that the phrase "due cause" has no
precedent in law or jurisprudence and that
whether there is due cause or not is left to
the discretion of the police. Replying to this,
the Solicitor General asserts that Congress is
not required to define the meaning of every
word it uses in drafting the law.

In Smith v. Maryland,94 cited by the Solicitor

General, the United States Supreme Court
reasoned that telephone users in the 70s
must realize that they necessarily convey
phone numbers to the telephone company in
order to complete a call. That Court ruled
that even if there is an expectation that
phone numbers one dials should remain
private, such expectation is not one that
society is prepared to recognize as
reasonable.

Indeed, courts are able to save vague

provisions of law through statutory
construction. But the cybercrime law, dealing
with a novel situation, fails to hint at the
meaning it intends for the phrase "due
cause." The Solicitor General suggests that
"due cause" should mean "just reason or
motive" and "adherence to a lawful
procedure." But the Court cannot draw this
meaning since Section 12 does not even
bother to relate the collection of data to the
probable commission of a particular crime. It
just says, "with due cause," thus justifying a
general gathering of data. It is akin to the
use of a general search warrant that the
Constitution prohibits.

In much the same way, ICT users must know

that they cannot communicate or exchange
data with one another over cyberspace

Due cause is also not descriptive of the

purpose for which data collection will be
used. Will the law enforcement agencies use

the traffic data to identify the perpetrator of

a cyber attack? Or will it be used to build up
a case against an identified suspect? Can the
data be used to prevent cybercrimes from
happening?
The authority that Section 12 gives law
enforcement agencies is too sweeping and
lacks restraint. While it says that traffic data
collection should not disclose identities or
content data, such restraint is but an illusion.
Admittedly, nothing can prevent law
enforcement agencies holding these data in
their hands from looking into the identity of
their sender or receiver and what the data
contains. This will unnecessarily expose the
citizenry to leaked information or, worse, to
extortion from certain bad elements in these
agencies.
Section 12, of course, limits the collection of
traffic data to those "associated with
specified communications." But this
supposed limitation is no limitation at all
since, evidently, it is the law enforcement
agencies that would specify the target
communications. The power is virtually
limitless, enabling law enforcement
authorities to engage in "fishing expedition,"
choosing whatever specified communication
they want. This evidently threatens the right
of individuals to privacy.
The Solicitor General points out that Section
12 needs to authorize collection of traffic
data "in real time" because it is not possible
to get a court warrant that would authorize
the search of what is akin to a "moving
vehicle." But warrantless search is
associated with a police officers
determination of probable cause that a crime
has been committed, that there is no
opportunity for getting a warrant, and that
unless the search is immediately carried out,
the thing to be searched stands to be
removed. These preconditions are not
provided in Section 12.
The Solicitor General is honest enough to
admit that Section 12 provides minimal
protection to internet users and that the
procedure envisioned by the law could be
better served by providing for more robust
safeguards. His bare assurance that law
enforcement authorities will not abuse the
provisions of Section 12 is of course not
enough. The grant of the power to track
cyberspace communications in real time and

determine their sources and destinations

must be narrowly drawn to preclude
abuses.95
Petitioners also ask that the Court strike
down Section 12 for being violative of the
void-for-vagueness doctrine and the
overbreadth doctrine. These doctrines
however, have been consistently held by this
Court to apply only to free speech cases. But
Section 12 on its own neither regulates nor
punishes any type of speech. Therefore, such
analysis is unnecessary.
This Court is mindful that advances in
technology allow the government and
kindred institutions to monitor individuals
and place them under surveillance in ways
that have previously been impractical or
even impossible. "All the forces of a
technological age x x x operate to narrow the
area of privacy and facilitate intrusions into
it. In modern terms, the capacity to maintain
and support this enclave of private life marks
the difference between a democratic and a
totalitarian society."96 The Court must
ensure that laws seeking to take advantage
of these technologies be written with
specificity and definiteness as to ensure
respect for the rights that the Constitution
guarantees.
Section 13 of the Cybercrime Law
Sec. 13. Preservation of Computer Data.
The integrity of traffic data and subscriber
information relating to communication
services provided by a service provider shall
be preserved for a minimum period of six (6)
months from the date of the transaction.
Content data shall be similarly preserved for
six (6) months from the date of receipt of the
order from law enforcement authorities
requiring its preservation.
Law enforcement authorities may order a
one-time extension for another six (6)
months: Provided, That once computer data
preserved, transmitted or stored by a service
provider is used as evidence in a case, the
mere furnishing to such service provider of
the transmittal document to the Office of the
Prosecutor shall be deemed a notification to
preserve the computer data until the
termination of the case.

The service provider ordered to preserve

computer data shall keep confidential the
order and its compliance.
Petitioners in G.R. 20339197 claim that
Section 13 constitutes an undue deprivation
of the right to property. They liken the data
preservation order that law enforcement
authorities are to issue as a form of
garnishment of personal property in civil
forfeiture proceedings. Such order prevents
internet users from accessing and disposing
of traffic data that essentially belong to
them.
No doubt, the contents of materials sent or
received through the internet belong to their
authors or recipients and are to be
considered private communications. But it is
not clear that a service provider has an
obligation to indefinitely keep a copy of the
same as they pass its system for the benefit
of users. By virtue of Section 13, however,
the law now requires service providers to
keep traffic data and subscriber information
relating to communication services for at
least six months from the date of the
transaction and those relating to content
data for at least six months from receipt of
the order for their preservation.
Actually, the user ought to have kept a copy
of that data when it crossed his computer if
he was so minded. The service provider has
never assumed responsibility for their loss or
deletion while in its keep.
At any rate, as the Solicitor General correctly
points out, the data that service providers
preserve on orders of law enforcement
authorities are not made inaccessible to
users by reason of the issuance of such
orders. The process of preserving data will
not unduly hamper the normal transmission
or use of the same.
Section 14 of the Cybercrime Law
Sec. 14. Disclosure of Computer Data. Law
enforcement authorities, upon securing a
court warrant, shall issue an order requiring
any person or service provider to disclose or
submit subscribers information, traffic data
or relevant data in his/its possession or
control within seventy-two (72) hours from
receipt of the order in relation to a valid
complaint officially docketed and assigned
for investigation and the disclosure is

necessary and relevant for the purpose of

investigation.
The process envisioned in Section 14 is being
likened to the issuance of a subpoena.
Petitioners objection is that the issuance of
subpoenas is a judicial function. But it is wellsettled that the power to issue subpoenas is
not exclusively a judicial function. Executive
agencies have the power to issue subpoena
as an adjunct of their investigatory
powers.98
Besides, what Section 14 envisions is merely
the enforcement of a duly issued court
warrant, a function usually lodged in the
hands of law enforcers to enable them to
carry out their executive functions. The
prescribed procedure for disclosure would
not constitute an unlawful search or seizure
nor would it violate the privacy of
communications and correspondence.
Disclosure can be made only after judicial
intervention.
Section 15 of the Cybercrime Law
Sec. 15. Search, Seizure and Examination of
Computer Data. Where a search and
seizure warrant is properly issued, the law
enforcement authorities shall likewise have
the following powers and duties.
Within the time period specified in the
warrant, to conduct interception, as defined
in this Act, and:
(a) To secure a computer system or a
computer data storage medium;
(b) To make and retain a copy of those
computer data secured;
(c) To maintain the integrity of the relevant
stored computer data;
(d) To conduct forensic analysis or
examination of the computer data storage
medium; and
(e) To render inaccessible or remove those
computer data in the accessed computer or
computer and communications network.
Pursuant thereof, the law enforcement
authorities may order any person who has
knowledge about the functioning of the
computer system and the measures to
protect and preserve the computer data
therein to provide, as is reasonable, the

necessary information, to enable the

undertaking of the search, seizure and
examination.
Law enforcement authorities may request for
an extension of time to complete the
examination of the computer data storage
medium and to make a return thereon but in
no case for a period longer than thirty (30)
days from date of approval by the court.

Petitioners challenge Section 15 on the

assumption that it will supplant established
search and seizure procedures. On its face,
however, Section 15 merely enumerates the
duties of law enforcement authorities that
would ensure the proper collection,
preservation, and use of computer system or
data that have been seized by virtue of a
court warrant. The exercise of these duties
do not pose any threat on the rights of the
person from whom they were taken. Section
15 does not appear to supersede existing
search and seizure rules but merely
supplements them.
Section 17 of the Cybercrime Law
Sec. 17. Destruction of Computer Data.
Upon expiration of the periods as provided in
Sections 13 and 15, service providers and
law enforcement authorities, as the case
may be, shall immediately and completely
destroy the computer data subject of a
preservation and examination.
Section 17 would have the computer data,
previous subject of preservation or
examination, destroyed or deleted upon the
lapse of the prescribed period. The Solicitor
General justifies this as necessary to clear up
the service providers storage systems and
prevent overload. It would also ensure that
investigations are quickly concluded.
Petitioners claim that such destruction of
computer data subject of previous
preservation or examination violates the
users right against deprivation of property
without due process of law. But, as already
stated, it is unclear that the user has a
demandable right to require the service
provider to have that copy of the data saved
indefinitely for him in its storage system. If
he wanted them preserved, he should have
saved them in his computer when he
generated the data or received it. He could

also request the service provider for a copy

before it is deleted.
Section 19 of the Cybercrime Law
Sec. 19. Restricting or Blocking Access to
Computer Data. When a computer data is
prima facie found to be in violation of the
provisions of this Act, the DOJ shall issue an
order to restrict or block access to such
computer data.
Petitioners contest Section 19 in that it stifles
freedom of expression and violates the right
against unreasonable searches and seizures.
The Solicitor General concedes that this
provision may be unconstitutional. But since
laws enjoy a presumption of constitutionality,
the Court must satisfy itself that Section 19
indeed violates the freedom and right
mentioned.
Computer data99 may refer to entire
programs or lines of code, including
malware, as well as files that contain texts,
images, audio, or video recordings. Without
having to go into a lengthy discussion of
property rights in the digital space, it is
indisputable that computer data, produced or
created by their writers or authors may
constitute personal property. Consequently,
they are protected from unreasonable
searches and seizures, whether while stored
in their personal computers or in the service
providers systems.
Section 2, Article III of the 1987 Constitution
provides that the right to be secure in ones
papers and effects against unreasonable
searches and seizures of whatever nature
and for any purpose shall be inviolable.
Further, it states that no search warrant shall
issue except upon probable cause to be
determined personally by the judge. Here,
the Government, in effect, seizes and places
the computer data under its control and
disposition without a warrant. The
Department of Justice order cannot
substitute for judicial search warrant.
The content of the computer data can also
constitute speech. In such a case, Section 19
operates as a restriction on the freedom of
expression over cyberspace. Certainly not all
forms of speech are protected. Legislature
may, within constitutional bounds, declare
certain kinds of expression as illegal. But for
an executive officer to seize content alleged

to be unprotected without any judicial

warrant, it is not enough for him to be of the
opinion that such content violates some law,
for to do so would make him judge, jury, and
executioner all rolled into one.100
Not only does Section 19 preclude any
judicial intervention, but it also disregards
jurisprudential guidelines established to
determine the validity of restrictions on
speech. Restraints on free speech are
generally evaluated on one of or a
combination of three tests: the dangerous
tendency doctrine, the balancing of interest
test, and the clear and present danger
rule.101 Section 19, however, merely
requires that the data to be blocked be found
prima facie in violation of any provision of
the cybercrime law. Taking Section 6 into
consideration, this can actually be made to
apply in relation to any penal provision. It
does not take into consideration any of the
three tests mentioned above.
The Court is therefore compelled to strike
down Section 19 for being violative of the
constitutional guarantees to freedom of
expression and against unreasonable
searches and seizures.
Section 20 of the Cybercrime Law
Sec. 20. Noncompliance. Failure to comply
with the provisions of Chapter IV hereof
specifically the orders from law enforcement
authorities shall be punished as a violation of
Presidential Decree No. 1829 with
imprisonment of prision correctional in its
maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order
issued by law enforcement authorities.
Petitioners challenge Section 20, alleging
that it is a bill of attainder. The argument is
that the mere failure to comply constitutes a
legislative finding of guilt, without regard to
situations where non-compliance would be
reasonable or valid.
But since the non-compliance would be
punished as a violation of Presidential Decree
(P.D.) 1829,102 Section 20 necessarily
incorporates elements of the offense which
are defined therein. If Congress had intended
for Section 20 to constitute an offense in and
of itself, it would not have had to make
reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional
in its maximum period, or a fine ranging from
1,000 to 6,000 pesos, or both, shall be
imposed upon any person who knowingly or
willfully obstructs, impedes, frustrates or
delays the apprehension of suspects and the
investigation and prosecution of criminal
cases by committing any of the following
acts:
Thus, the act of non-compliance, for it to be
punishable, must still be done "knowingly or
willfully." There must still be a judicial
determination of guilt, during which, as the
Solicitor General assumes, defense and
justifications for non-compliance may be
raised. Thus, Section 20 is valid insofar as it
applies to the provisions of Chapter IV which
are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sec. 24. Cybercrime Investigation and
Coordinating Center. There is hereby
created, within thirty (30) days from the
effectivity of this Act, an inter-agency body
to be known as the Cybercrime Investigation
and Coordinating Center (CICC), under the
administrative supervision of the Office of
the President, for policy coordination among
concerned agencies and for the formulation
and enforcement of the national
cybersecurity plan.
Sec. 26. Powers and Functions. The CICC
shall have the following powers and
functions:
(a) To formulate a national cybersecurity plan
and extend immediate assistance of real
time commission of cybercrime offenses
through a computer emergency response
team (CERT); x x x.
Petitioners mainly contend that Congress
invalidly delegated its power when it gave
the Cybercrime Investigation and
Coordinating Center (CICC) the power to
formulate a national cybersecurity plan
without any sufficient standards or
parameters for it to follow.
In order to determine whether there is undue
delegation of legislative power, the Court has
adopted two tests: the completeness test
and the sufficient standard test. Under the
first test, the law must be complete in all its

terms and conditions when it leaves the

legislature such that when it reaches the
delegate, the only thing he will have to do is
to enforce it.1avvphi1 The second test
mandates adequate guidelines or limitations
in the law to determine the boundaries of the
delegates authority and prevent the
delegation from running riot.103

b. Section 4(a)(3) that penalizes data

interference, including transmission of
viruses;

Here, the cybercrime law is complete in itself

when it directed the CICC to formulate and
implement a national cybersecurity plan.
Also, contrary to the position of the
petitioners, the law gave sufficient standards
for the CICC to follow when it provided a
definition of cybersecurity.

d. Section 4(b)(3) that penalizes identity

theft or the use or misuse of identifying
information belonging to another;

Cybersecurity refers to the collection of tools,

policies, risk management approaches,
actions, training, best practices, assurance
and technologies that can be used to protect
cyber environment and organization and
users assets.104 This definition serves as
the parameters within which CICC should
work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity
plan is consistent with the policy of the law
to "prevent and combat such [cyber]
offenses by facilitating their detection,
investigation, and prosecution at both the
domestic and international levels, and by
providing arrangements for fast and reliable
international cooperation."105 This policy is
clearly adopted in the interest of law and
order, which has been considered as
sufficient standard.106 Hence, Sections 24
and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that
penalizes posting of unsolicited commercial
communications;

c. Section 4(a)(6) that penalizes cybersquatting or acquiring domain name over the
internet in bad faith to the prejudice of
others;

e. Section 4(c)(1) that penalizes cybersex or

the lascivious exhibition of sexual organs or
sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the
production of child pornography;
g. Section 6 that imposes penalties one
degree higher when crimes defined under
the Revised Penal Code are committed with
the use of information and communications
technologies;
h. Section 8 that prescribes the penalties for
cybercrimes;
i. Section 13 that permits law enforcement
authorities to require service providers to
preserve traffic data and subscriber
information as well as specified content data
for six months;
j. Section 14 that authorizes the disclosure of
computer data under a court-issued warrant;
k. Section 15 that authorizes the search,
seizure, and examination of computer data
under a court-issued warrant;
l. Section 17 that authorizes the destruction
of previously preserved computer data after
the expiration of the prescribed holding
periods;

b. Section 12 that authorizes the collection or

recording of traffic data in real-time; and

m. Section 20 that penalizes obstruction of

justice in relation to cybercrime
investigations;

c. Section 19 of the same Act that authorizes

the Department of Justice to restrict or block
access to suspected Computer Data.

n. Section 24 that establishes a Cybercrime

Investigation and Coordinating Center
(CICC);

2. VALID and CONSTITUTIONAL:

o. Section 26(a) that defines the CICCs

Powers and Functions; and

a. Section 4(a)(1) that penalizes accessing a

computer system without right;

p. Articles 353, 354, 361, and 362 of the

Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel
as VALID and CONSTITUTIONAL with respect
to the original author of the post; but VOID
and UNCONSTITUTIONAL with respect to
others who simply receive the post and react
to it; and
2. Section 5 that penalizes aiding or abetting
and attempt in the commission of
cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to Section
4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of
Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery,
Section 4(b)(2) on Computer-related Fraud,
Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex; but
VOID and UNCONSTITUTIONAL with respect
to Sections 4(c)(2) on Child Pornography,
4(c)(3) on Unsolicited Commercial
Communications, and 4(c)(4) on online
Libel.1wphi1
Lastly, the Court RESOLVES to LEAVE THE
DETERMINATION of the correct application of
Section 7 that authorizes prosecution of the
offender under both the Revised Penal Code
and Republic Act 10175 to actual cases,
WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the
offender under both Section 4(c)(4) of
Republic Act 10175 and Article 353 of the
Revised Penal Code constitutes a violation of
the proscription against double jeopardy; as
well as
2. Child pornography committed online as to
which, charging the offender under both
Section 4(c)(2) of Republic Act 10175 and
Republic Act 9775 or the Anti-Child
Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in
respect to these, is VOID and
UNCONSTITUTIONAL.
SO ORDERED.

Sameer overseas v Cabiles

This case involves an overseas Filipino
worker with shattered dreams. It is our duty,

given the facts and the law, to approximate

justice for her.
We are asked to decide a petition for review1
on certiorari assailing the Court of Appeals
decision2 dated June 27, 2005. This decision
partially affirmed the National Labor
Relations Commissions resolution dated
March 31, 2004,3 declaring respondents
dismissal illegal, directing petitioner to pay
respondents three-month salary equivalent
to New Taiwan Dollar (NT$) 46,080.00, and
ordering it to reimburse the NT$3,000.00
withheld from respondent, and pay her
NT$300.00 attorneys fees.4cralawred
Petitioner, Sameer Overseas Placement
Agency, Inc., is a recruitment and placement
agency.5 Responding to an ad it published,
respondent, Joy C. Cabiles, submitted her
application for a quality control job in
Taiwan.6cralawred
Joys application was accepted.7 Joy was
later asked to sign a one-year employment
contract for a monthly salary of
NT$15,360.00.8 She alleged that Sameer
Overseas Agency required her to pay a
placement fee of P70,000.00 when she
signed the employment contract.9cralawred
Joy was deployed to work for Taiwan Wacoal,
Co. Ltd. (Wacoal) on June 26, 1997.10 She
alleged that in her employment contract, she
agreed to work as quality control for one
year.11 In Taiwan, she was asked to work as
a cutter.12cralawred
Sameer Overseas Placement Agency claims
that on July 14, 1997, a certain Mr. Huwang
from Wacoal informed Joy, without prior
notice, that she was terminated and that
she should immediately report to their office
to get her salary and passport.13 She was
asked to prepare for immediate
repatriation.14cralawred
Joy claims that she was told that from June
26 to July 14, 1997, she only earned a total
of NT$9,000.15 According to her, Wacoal
deducted NT$3,000 to cover her plane ticket
to Manila.16cralawred
On October 15, 1997, Joy filed a complaint17
with the National Labor Relations
Commission against petitioner and Wacoal.
She claimed that she was illegally
dismissed.18 She asked for the return of her
placement fee, the withheld amount for

repatriation costs, payment of her salary for

23 months as well as moral and exemplary
damages.19 She identified Wacoal as
Sameer Overseas Placement Agencys
foreign principal.20cralawred
Sameer Overseas Placement Agency alleged
that respondent's termination was due to her
inefficiency, negligence in her duties, and
her failure to comply with the work
requirements [of] her foreign [employer].21
The agency also claimed that it did not ask
for a placement fee of ?70,000.00.22 As
evidence, it showed Official Receipt No.
14860 dated June 10, 1997, bearing the
amount of ?20,360.00.23 Petitioner added
that Wacoal's accreditation with petitioner
had already been transferred to the Pacific
Manpower & Management Services, Inc.
(Pacific) as of August 6, 1997.24 Thus,
petitioner asserts that it was already
substituted by Pacific Manpower.25cralawred
Pacific Manpower moved for the dismissal of
petitioners claims against it.26 It alleged
that there was no employer-employee
relationship between them.27 Therefore, the
claims against it were outside the jurisdiction
of the Labor Arbiter.28 Pacific Manpower
argued that the employment contract should
first be presented so that the employers
contractual obligations might be identified.29
It further denied that it assumed liability for
petitioners illegal acts.30cralawred
On July 29, 1998, the Labor Arbiter dismissed
Joys complaint.31 Acting Executive Labor
Arbiter Pedro C. Ramos ruled that her
complaint was based on mere allegations.32
The Labor Arbiter found that there was no
excess payment of placement fees, based on
the official receipt presented by petitioner.33
The Labor Arbiter found unnecessary a
discussion on petitioners transfer of
obligations to Pacific34 and considered the
matter immaterial in view of the dismissal of
respondents complaint.35cralawred
Joy appealed36 to the National Labor
Relations Commission.
In a resolution37 dated March 31, 2004, the
National Labor Relations Commission
declared that Joy was illegally dismissed.38 It
reiterated the doctrine that the burden of
proof to show that the dismissal was based
on a just or valid cause belongs to the
employer.39 It found that Sameer Overseas

Placement Agency failed to prove that there

were just causes for termination.40 There
was no sufficient proof to show that
respondent was inefficient in her work and
that she failed to comply with company
requirements.41 Furthermore, procedural
due process was not observed in terminating
respondent.42cralawred
The National Labor Relations Commission did
not rule on the issue of reimbursement of
placement fees for lack of jurisdiction.43 It
refused to entertain the issue of the alleged
transfer of obligations to Pacific.44 It did not
acquire jurisdiction over that issue because
Sameer Overseas Placement Agency failed to
appeal the Labor Arbiters decision not to
rule on the matter.45cralawred
The National Labor Relations Commission
awarded respondent only three (3) months
worth of salary in the amount of NT$46,080,
the reimbursement of the NT$3,000 withheld
from her, and attorneys fees of
NT$300.46cralawred
The Commission denied the agencys motion
for reconsideration47 dated May 12, 2004
through a resolution48 dated July 2, 2004.
Aggrieved by the ruling, Sameer Overseas
Placement Agency caused the filing of a
petition49 for certiorari with the Court of
Appeals assailing the National Labor
Relations Commissions resolutions dated
March 31, 2004 and July 2, 2004.
The Court of Appeals50 affirmed the decision
of the National Labor Relations Commission
with respect to the finding of illegal
dismissal, Joys entitlement to the equivalent
of three months worth of salary,
reimbursement of withheld repatriation
expense, and attorneys fees.51 The Court of
Appeals remanded the case to the National
Labor Relations Commission to address the
validity of petitioner's allegations against
Pacific.52 The Court of Appeals held,
thus:chanRoblesvirtualLawlibrary
Although the public respondent found the
dismissal of the complainant-respondent
illegal, we should point out that the NLRC
merely awarded her three (3) months
backwages or the amount of NT$46,080.00,
which was based upon its finding that she
was dismissed without due process, a finding
that we uphold, given petitioners lack of

worthwhile discussion upon the same in the

proceedings below or before us. Likewise we
sustain NLRCs finding in regard to the
reimbursement of her fare, which is squarely
based on the law; as well as the award of
attorneys fees.
But we do find it necessary to remand the
instant case to the public respondent for
further proceedings, for the purpose of
addressing the validity or propriety of
petitioners third-party complaint against the
transferee agent or the Pacific Manpower &
Management Services, Inc. and Lea G.
Manabat. We should emphasize that as far as
the decision of the NLRC on the claims of Joy
Cabiles, is concerned, the same is hereby
affirmed with finality, and we hold petitioner
liable thereon, but without prejudice to
further hearings on its third party complaint
against Pacific for reimbursement.
WHEREFORE, premises considered, the
assailed Resolutions are hereby partly
AFFIRMED in accordance with the foregoing
discussion, but subject to the caveat
embodied in the last sentence. No costs.
SO ORDERED.53
Dissatisfied, Sameer Overseas Placement
Agency filed this petition.54cralawred
We are asked to determine whether the
Court of Appeals erred when it affirmed the
ruling of the National Labor Relations
Commission finding respondent illegally
dismissed and awarding her three months
worth of salary, the reimbursement of the
cost of her repatriation, and attorneys fees
despite the alleged existence of just causes
of termination.
Petitioner reiterates that there was just
cause for termination because there was a
finding of Wacoal that respondent was
inefficient in her work.55 Therefore, it claims
that respondents dismissal was
valid.56cralawred
Petitioner also reiterates that since Wacoals
accreditation was validly transferred to
Pacific at the time respondent filed her
complaint, it should be Pacific that should
now assume responsibility for Wacoals
contractual obligations to the workers
originally recruited by petitioner.57cralawred

Sameer Overseas Placement Agencys

petition is without merit. We find for
respondent.
I. Sameer Overseas Placement Agency failed
to show that there was just cause for causing
Joys dismissal. The employer, Wacoal, also
failed to accord her due process of law.
Indeed, employers have the prerogative to
impose productivity and quality standards at
work.58 They may also impose reasonable
rules to ensure that the employees comply
with these standards.59 Failure to comply
may be a just cause for their dismissal.60
Certainly, employers cannot be compelled to
retain the services of an employee who is
guilty of acts that are inimical to the interest
of the employer.61 While the law
acknowledges the plight and vulnerability of
workers, it does not authorize the
oppression or self-destruction of the
employer.62 Management prerogative is
recognized in law and in our jurisprudence.
This prerogative, however, should not be
abused. It is tempered with the employees
right to security of tenure.63 Workers are
entitled to substantive and procedural due
process before termination. They may not be
removed from employment without a valid or
just cause as determined by law and without
going through the proper procedure.
Security of tenure for labor is guaranteed by
our Constitution.64cralawred
Employees are not stripped of their security
of tenure when they move to work in a
different jurisdiction. With respect to the
rights of overseas Filipino workers, we follow
the principle of lex loci contractus.
Thus, in Triple Eight Integrated Services, Inc.
v. NLRC,65 this court
noted:chanRoblesvirtualLawlibrary
Petitioner likewise attempts to sidestep the
medical certificate requirement by
contending that since Osdana was working in
Saudi Arabia, her employment was subject to
the laws of the host country. Apparently,
petitioner hopes to make it appear that the
labor laws of Saudi Arabia do not require any
certification by a competent public health
authority in the dismissal of employees due
to illness.
Again, petitioners argument is without merit.

First, established is the rule that lex loci

contractus (the law of the place where the
contract is made) governs in this jurisdiction.
There is no question that the contract of
employment in this case was perfected here
in the Philippines. Therefore, the Labor Code,
its implementing rules and regulations, and
other laws affecting labor apply in this case.
Furthermore, settled is the rule that the
courts of the forum will not enforce any
foreign claim obnoxious to the forums public
policy. Here in the Philippines, employment
agreements are more than contractual in
nature. The Constitution itself, in Article XIII,
Section 3, guarantees the special protection
of workers, to
wit:chanRoblesvirtualLawlibrary
The State shall afford full protection to labor,
local and overseas, organized and
unorganized, and promote full employment
and equality of employment opportunities for
all.
It shall guarantee the rights of all workers to
self-organization, collective bargaining and
negotiations, and peaceful concerted
activities, including the right to strike in
accordance with law. They shall be entitled
to security of tenure, humane conditions of
work, and a living wage. They shall also
participate in policy and decision-making
processes affecting their rights and benefits
as may be provided by law.
This public policy should be borne in mind in
this case because to allow foreign employers
to determine for and by themselves whether
an overseas contract worker may be
dismissed on the ground of illness would
encourage illegal or arbitrary pre-termination
of employment contracts.66 (Emphasis
supplied, citation omitted)

cases of international maritime or overseas

employment.
The Court does not agree. The provisions of
the Constitution as well as the Labor Code
which afford protection to labor apply to
Filipino employees whether working within
the Philippines or abroad. Moreover, the
principle of lex loci contractus (the law of the
place where the contract is made) governs in
this jurisdiction. In the present case, it is not
disputed that the Contract of Employment
entered into by and between petitioners and
private respondent was executed here in the
Philippines with the approval of the Philippine
Overseas Employment Administration
(POEA). Hence, the Labor Code together with
its implementing rules and regulations and
other laws affecting labor apply in this
case.68 (Emphasis supplied, citations
omitted)
By our laws, overseas Filipino workers
(OFWs) may only be terminated for a just or
authorized cause and after compliance with
procedural due process requirements.
Article 282 of the Labor Code enumerates
the just causes of termination by the
employer. Thus:chanRoblesvirtualLawlibrary
Art. 282. Termination by employer. An
employer may terminate an employment for
any of the following causes:cralawlawlibrary
(a) Serious misconduct or willful
disobedience by the employee of the lawful
orders of his employer or representative in
connection with his
work;chanroblesvirtuallawlibrary
(b) Gross and habitual neglect by the
employee of his
duties;chanroblesvirtuallawlibrary

Even with respect to fundamental procedural

rights, this court emphasized in PCL Shipping
Philippines, Inc. v. NLRC,67 to
wit:chanRoblesvirtualLawlibrary

(c) Fraud or willful breach by the employee of

the trust reposed in him by his employer or
duly authorized
representative;chanroblesvirtuallawlibrary

Petitioners admit that they did not inform

private respondent in writing of the charges
against him and that they failed to conduct a
formal investigation to give him opportunity
to air his side. However, petitioners contend
that the twin requirements of notice and
hearing applies strictly only when the
employment is within the Philippines and
that these need not be strictly observed in

(d) Commission of a crime or offense by the

employee against the person of his employer
or any immediate member of his family or
his duly authorized representatives;
andChanRoblesVirtualawlibrary
(e) Other causes analogous to the foregoing.
Petitioners allegation that respondent was
inefficient in her work and negligent in her

duties69 may, therefore, constitute a just

cause for termination under Article 282(b),
but only if petitioner was able to prove it.
The burden of proving that there is just
cause for termination is on the employer.
The employer must affirmatively show
rationally adequate evidence that the
dismissal was for a justifiable cause.70
Failure to show that there was valid or just
cause for termination would necessarily
mean that the dismissal was
illegal.71cralawred
To show that dismissal resulting from
inefficiency in work is valid, it must be shown
that: 1) the employer has set standards of
conduct and workmanship against which the
employee will be judged; 2) the standards of
conduct and workmanship must have been
communicated to the employee; and 3) the
communication was made at a reasonable
time prior to the employees performance
assessment.
This is similar to the law and jurisprudence
on probationary employees, which allow
termination of the employee only when there
is just cause or when [the probationary
employee] fails to qualify as a regular
employee in accordance with reasonable
standards made known by the employer to
the employee at the time of his [or her]
engagement.72cralawred
However, we do not see why the application
of that ruling should be limited to
probationary employment. That rule is basic
to the idea of security of tenure and due
process, which are guaranteed to all
employees, whether their employment is
probationary or regular.
The pre-determined standards that the
employer sets are the bases for determining
the probationary employees fitness,
propriety, efficiency, and qualifications as a
regular employee. Due process requires that
the probationary employee be informed of
such standards at the time of his or her
engagement so he or she can adjust his or
her character or workmanship accordingly.
Proper adjustment to fit the standards upon
which the employees qualifications will be
evaluated will increase ones chances of
being positively assessed for regularization
by his or her employer.

Assessing an employees work performance

does not stop after regularization. The
employer, on a regular basis, determines if
an employee is still qualified and efficient,
based on work standards. Based on that
determination, and after complying with the
due process requirements of notice and
hearing, the employer may exercise its
management prerogative of terminating the
employee found unqualified.
The regular employee must constantly
attempt to prove to his or her employer that
he or she meets all the standards for
employment. This time, however, the
standards to be met are set for the purpose
of retaining employment or promotion. The
employee cannot be expected to meet any
standard of character or workmanship if such
standards were not communicated to him or
her. Courts should remain vigilant on
allegations of the employers failure to
communicate work standards that would
govern ones employment if [these are] to
discharge in good faith [their] duty to
adjudicate.73cralawred
In this case, petitioner merely alleged that
respondent failed to comply with her foreign
employers work requirements and was
inefficient in her work.74No evidence was
shown to support such allegations. Petitioner
did not even bother to specify what
requirements were not met, what efficiency
standards were violated, or what particular
acts of respondent constituted inefficiency.
There was also no showing that respondent
was sufficiently informed of the standards
against which her work efficiency and
performance were judged. The parties
conflict as to the position held by respondent
showed that even the matter as basic as the
job title was not clear.
The bare allegations of petitioner are not
sufficient to support a claim that there is just
cause for termination. There is no proof that
respondent was legally terminated.
Petitioner failed to comply with the due
process requirements
Respondents dismissal less than one year
from hiring and her repatriation on the same
day show not only failure on the part of
petitioner to comply with the requirement of
the existence of just cause for termination.

They patently show that the employers did

not comply with the due process
requirement.
A valid dismissal requires both a valid cause
and adherence to the valid procedure of
dismissal.75 The employer is required to give
the charged employee at least two written
notices before termination.76 One of the
written notices must inform the employee of
the particular acts that may cause his or her
dismissal.77 The other notice must [inform]
the employee of the employers decision.78
Aside from the notice requirement, the
employee must also be given an
opportunity to be heard.79cralawred
Petitioner failed to comply with the twin
notices and hearing requirements.
Respondent started working on June 26,
1997. She was told that she was terminated
on July 14, 1997 effective on the same day
and barely a month from her first workday.
She was also repatriated on the same day
that she was informed of her termination.
The abruptness of the termination negated
any finding that she was properly notified
and given the opportunity to be heard. Her
constitutional right to due process of law was
violated.
II. Respondent Joy Cabiles, having been
illegally dismissed, is entitled to her salary
for the unexpired portion of the employment
contract that was violated together with
attorneys fees and reimbursement of
amounts withheld from her salary.
Section 10 of Republic Act No. 8042,
otherwise known as the Migrant Workers and
Overseas Filipinos Act of 1995, states that
overseas workers who were terminated
without just, valid, or authorized cause shall
be entitled to the full reimbursement of his
placement fee with interest of twelve (12%)
per annum, plus his salaries for the
unexpired portion of his employment
contract or for three (3) months for every
year of the unexpired term, whichever is
less.
Sec. 10. MONEY CLAIMS. Notwithstanding
any provision of law to the contrary, the
Labor Arbiters of the National Labor Relations
Commission (NLRC) shall have the original
and exclusive jurisdiction to hear and decide,
within ninety (90) calendar days after filing
of the complaint, the claims arising out of an

employer-employee relationship or by virtue

of any law or contract involving Filipino
workers for overseas deployment including
claims for actual, moral, exemplary and
other forms of damages.
The liability of the principal/employer and the
recruitment/placement agency for any and
all claims under this section shall be joint
and several. This provisions [sic] shall be
incorporated in the contract for overseas
employment and shall be a condition
precedent for its approval. The performance
bond to be filed by the
recruitment/placement agency, as provided
by law, shall be answerable for all money
claims or damages that may be awarded to
the workers. If the recruitment/placement
agency is a juridical being, the corporate
officers and directors and partners as the
case may be, shall themselves be jointly and
solidarily liable with the corporation or
partnership for the aforesaid claims and
damages.
Such liabilities shall continue during the
entire period or duration of the employment
contract and shall not be affected by any
substitution, amendment or modification
made locally or in a foreign country of the
said contract.
Any compromise/amicable settlement or
voluntary agreement on money claims
inclusive of damages under this section shall
be paid within four (4) months from the
approval of the settlement by the
appropriate authority.
In case of termination of overseas
employment without just, valid or authorized
cause as defined by law or contract, the
workers shall be entitled to the full
reimbursement of his placement fee with
interest of twelve (12%) per annum, plus his
salaries for the unexpired portion of his
employment contract or for three (3) months
for every year of the unexpired term,
whichever is less.
Section 15 of Republic Act No. 8042 states
that repatriation of the worker and the
transport of his [or her] personal belongings
shall be the primary responsibility of the
agency which recruited or deployed the
worker overseas. The exception is when
termination of employment is due solely to
the fault of the worker,80 which as we have

established, is not the case. It

reads:chanRoblesvirtualLawlibrary
SEC. 15. REPATRIATION OF WORKERS;
EMERGENCY REPATRIATION FUND. The
repatriation of the worker and the transport
of his personal belongings shall be the
primary responsibility of the agency which
recruited or deployed the worker overseas.
All costs attendant to repatriation shall be
borne by or charged to the agency
concerned and/or its principal. Likewise, the
repatriation of remains and transport of the
personal belongings of a deceased worker
and all costs attendant thereto shall be
borne by the principal and/or local agency.
However, in cases where the termination of
employment is due solely to the fault of the
worker, the principal/employer or agency
shall not in any manner be responsible for
the repatriation of the former and/or his
belongings.
The Labor Code81 also entitles the employee
to 10% of the amount of withheld wages as
attorneys fees when the withholding is
unlawful.
The Court of Appeals affirmed the National
Labor Relations Commissions decision to
award respondent NT$46,080.00 or the
three-month equivalent of her salary,
attorneys fees of NT$300.00, and the
reimbursement of the withheld NT$3,000.00
salary, which answered for her repatriation.
We uphold the finding that respondent is
entitled to all of these awards. The award of
the three-month equivalent of respondents
salary should, however, be increased to the
amount equivalent to the unexpired term of
the employment contract.
In Serrano v. Gallant Maritime Services, Inc.
and Marlow Navigation Co., Inc.,82 this court
ruled that the clause or for three (3) months
for every year of the unexpired term,
whichever is less83 is unconstitutional for
violating the equal protection clause and
substantive due process.84cralawred
A statute or provision which was declared
unconstitutional is not a law. It confers no
rights; it imposes no duties; it affords no
protection; it creates no office; it is
inoperative as if it has not been passed at
all.85cralawred

We are aware that the clause or for three (3)

months for every year of the unexpired term,
whichever is less was reinstated in Republic
Act No. 8042 upon promulgation of Republic
Act No. 10022 in 2010. Section 7 of Republic
Act No. 10022
provides:chanRoblesvirtualLawlibrary
Section 7. Section 10 of Republic Act No.
8042, as amended, is hereby amended to
read as follows:chanRoblesvirtualLawlibrary
SEC. 10. Money Claims. Notwithstanding
any provision of law to the contrary, the
Labor Arbiters of the National Labor Relations
Commission (NLRC) shall have the original
and exclusive jurisdiction to hear and decide,
within ninety (90) calendar days after the
filing of the complaint, the claims arising out
of an employer-employee relationship or by
virtue of any law or contract involving Filipino
workers for overseas deployment including
claims for actual, moral, exemplary and
other forms of damage. Consistent with this
mandate, the NLRC shall endeavor to update
and keep abreast with the developments in
the global services industry.
The liability of the principal/employer and the
recruitment/placement agency for any and
all claims under this section shall be joint
and several. This provision shall be
incorporated in the contract for overseas
employment and shall be a condition
precedent for its approval. The performance
bond to de [sic] filed by the
recruitment/placement agency, as provided
by law, shall be answerable for all money
claims or damages that may be awarded to
the workers. If the recruitment/placement
agency is a juridical being, the corporate
officers and directors and partners as the
case may be, shall themselves be jointly and
solidarily liable with the corporation or
partnership for the aforesaid claims and
damages.
Such liabilities shall continue during the
entire period or duration of the employment
contract and shall not be affected by any
substitution, amendment or modification
made locally or in a foreign country of the
said contract.
Any compromise/amicable settlement or
voluntary agreement on money claims
inclusive of damages under this section shall
be paid within thirty (30) days from approval

of the settlement by the appropriate

authority.

amended by Republic Act No. 10022 governs

this case.

In case of termination of overseas

employment without just, valid or authorized
cause as defined by law or contract, or any
unauthorized deductions from the migrant
workers salary, the worker shall be entitled
to the full reimbursement if [sic] his
placement fee and the deductions made with
interest at twelve percent (12%) per annum,
plus his salaries for the unexpired portion of
his employment contract or for three (3)
months for every year of the unexpired term,
whichever is less.

When a law is passed, this court awaits an

actual case that clearly raises adversarial
positions in their proper context before
considering a prayer to declare it as
unconstitutional.

In case of a final and executory judgement

against a foreign employer/principal, it shall
be automatically disqualified, without further
proceedings, from participating in the
Philippine Overseas Employment Program
and from recruiting and hiring Filipino
workers until and unless it fully satisfies the
judgement award.
Noncompliance with the mandatory periods
for resolutions of case provided under this
section shall subject the responsible officials
to any or all of the following
penalties:cralawlawlibrary
(a) The salary of any such official who fails to
render his decision or resolution within the
prescribed period shall be, or caused to be,
withheld until the said official complies
therewith;chanroblesvirtuallawlibrary
(b) Suspension for not more than ninety (90)
days; or
(c) Dismissal from the service with
disqualification to hold any appointive public
office for five (5) years.
Provided, however, That the penalties herein
provided shall be without prejudice to any
liability which any such official may have
incured [sic] under other existing laws or
rules and regulations as a consequence of
violating the provisions of this paragraph.
(Emphasis supplied)
Republic Act No. 10022 was promulgated on
March 8, 2010. This means that the
reinstatement of the clause in Republic Act
No. 8042 was not yet in effect at the time of
respondents termination from work in
1997.86 Republic Act No. 8042 before it was

However, we are confronted with a unique

situation. The law passed incorporates the
exact clause already declared as
unconstitutional, without any perceived
substantial change in the circumstances.
This may cause confusion on the part of the
National Labor Relations Commission and the
Court of Appeals. At minimum, the existence
of Republic Act No. 10022 may delay the
execution of the judgment in this case,
further frustrating remedies to assuage the
wrong done to petitioner. Hence, there is a
necessity to decide this constitutional issue.
Moreover, this court is possessed with the
constitutional duty to [p]romulgate rules
concerning the protection and enforcement
of constitutional rights.87 When cases
become moot and academic, we do not
hesitate to provide for guidance to bench
and bar in situations where the same
violations are capable of repetition but will
evade review. This is analogous to cases
where there are millions of Filipinos working
abroad who are bound to suffer from the lack
of protection because of the restoration of an
identical clause in a provision previously
declared as unconstitutional.
In the hierarchy of laws, the Constitution is
supreme. No branch or office of the
government may exercise its powers in any
manner inconsistent with the Constitution,
regardless of the existence of any law that
supports such exercise. The Constitution
cannot be trumped by any other law. All laws
must be read in light of the Constitution. Any
law that is inconsistent with it is a nullity.
Thus, when a law or a provision of law is null
because it is inconsistent with the
Constitution, the nullity cannot be cured by
reincorporation or reenactment of the same
or a similar law or provision. A law or
provision of law that was already declared
unconstitutional remains as such unless
circumstances have so changed as to
warrant a reverse conclusion.

We are not convinced by the pleadings

submitted by the parties that the situation
has so changed so as to cause us to reverse
binding precedent.

well as the Solicitor General have failed to

show any compelling change in the
circumstances that would warrant us to
revisit the precedent.

Likewise, there are special reasons of judicial

efficiency and economy that attend to these
cases.

We reiterate our finding in Serrano v. Gallant

Maritime that limiting wages that should be
recovered by an illegally dismissed overseas
worker to three months is both a violation of
due process and the equal protection clauses
of the Constitution.

The new law puts our overseas workers in

the same vulnerable position as they were
prior to Serrano. Failure to reiterate the very
ratio decidendi of that case will result in the
same untold economic hardships that our
reading of the Constitution intended to avoid.
Obviously, we cannot countenance added
expenses for further litigation that will
reduce their hard-earned wages as well as
add to the indignity of having been deprived
of the protection of our laws simply because
our precedents have not been followed.
There is no constitutional doctrine that
causes injustice in the face of empty
procedural niceties. Constitutional
interpretation is complex, but it is never
unreasonable.
Thus, in a resolution88 dated October 22,
2013, we ordered the parties and the Office
of the Solicitor General to comment on the
constitutionality of the reinstated clause in
Republic Act No. 10022.
In its comment,89 petitioner argued that the
clause was constitutional.90 The legislators
intended a balance between the employers
and the employees rights by not unduly
burdening the local recruitment agency.91
Petitioner is also of the view that the clause
was already declared as constitutional in
Serrano.92cralawred
The Office of the Solicitor General also
argued that the clause was valid and
constitutional.93 However, since the parties
never raised the issue of the constitutionality
of the clause as reinstated in Republic Act
No. 10022, its contention is that it is beyond
judicial review.94cralawred
On the other hand, respondent argued that
the clause was unconstitutional because it
infringed on workers right to
contract.95cralawred
We observe that the reinstated clause, this
time as provided in Republic Act. No. 10022,
violates the constitutional rights to equal
protection and due process.96 Petitioner as

Equal protection of the law is a guarantee

that persons under like circumstances and
falling within the same class are treated
alike, in terms of privileges conferred and
liabilities enforced.97 It is a guarantee
against undue favor and individual or class
privilege, as well as hostile discrimination or
the oppression of inequality.98cralawred
In creating laws, the legislature has the
power to make distinctions and
classifications.99 In exercising such power,
it has a wide discretion.100cralawred
The equal protection clause does not infringe
on this legislative power.101 A law is void on
this basis, only if classifications are made
arbitrarily.102 There is no violation of the
equal protection clause if the law applies
equally to persons within the same class and
if there are reasonable grounds for
distinguishing between those falling within
the class and those who do not fall within the
class.103 A law that does not violate the
equal protection clause prescribes a
reasonable classification.104cralawred
A reasonable classification (1) must rest on
substantial distinctions; (2) must be germane
to the purposes of the law; (3) must not be
limited to existing conditions only; and (4)
must apply equally to all members of the
same class.105cralawred
The reinstated clause does not satisfy the
requirement of reasonable classification.
In Serrano, we identified the classifications
made by the reinstated clause. It
distinguished between fixed-period overseas
workers and fixed-period local workers.106 It
also distinguished between overseas workers
with employment contracts of less than one
year and overseas workers with employment
contracts of at least one year.107 Within the
class of overseas workers with at least oneyear employment contracts, there was a

distinction between those with at least a

year left in their contracts and those with
less than a year left in their contracts when
they were illegally dismissed.108cralawred
The Congress classification may be
subjected to judicial review. In Serrano, there
is a legislative classification which
impermissibly interferes with the exercise of
a fundamental right or operates to the
peculiar disadvantage of a suspect
class.109cralawred
Under the Constitution, labor is afforded
special protection.110 Thus, this court in
Serrano, [i]mbued with the same sense of
obligation to afford protection to labor, . . .
employ[ed] the standard of strict judicial
scrutiny, for it perceive[d] in the subject
clause a suspect classification prejudicial to
OFWs.111cralawred
We also noted in Serrano that before the
passage of Republic Act No. 8042, the money
claims of illegally terminated overseas and
local workers with fixed-term employment
were computed in the same manner.112
Their money claims were computed based on
the unexpired portions of their
contracts.113 The adoption of the
reinstated clause in Republic Act No. 8042
subjected the money claims of illegally
dismissed overseas workers with an
unexpired term of at least a year to a cap of
three months worth of their salary.114 There
was no such limitation on the money claims
of illegally terminated local workers with
fixed-term employment.115cralawred
We observed that illegally dismissed
overseas workers whose employment
contracts had a term of less than one year
were granted the amount equivalent to the
unexpired portion of their employment
contracts.116 Meanwhile, illegally dismissed
overseas workers with employment terms of
at least a year were granted a cap equivalent
to three months of their salary for the
unexpired portions of their
contracts.117cralawred
Observing the terminologies used in the
clause, we also found that the subject
clause creates a sub-layer of discrimination
among OFWs whose contract periods are for
more than one year: those who are illegally
dismissed with less than one year left in their
contracts shall be entitled to their salaries for

the entire unexpired portion thereof, while

those who are illegally dismissed with one
year or more remaining in their contracts
shall be covered by the reinstated clause,
and their monetary benefits limited to their
salaries for three months only.118cralawred
We do not need strict scrutiny to conclude
that these classifications do not rest on any
real or substantial distinctions that would
justify different treatments in terms of the
computation of money claims resulting from
illegal termination.
Overseas workers regardless of their
classifications are entitled to security of
tenure, at least for the period agreed upon in
their contracts. This means that they cannot
be dismissed before the end of their contract
terms without due process. If they were
illegally dismissed, the workers right to
security of tenure is violated.
The rights violated when, say, a fixed-period
local worker is illegally terminated are
neither greater than nor less than the rights
violated when a fixed-period overseas worker
is illegally terminated. It is state policy to
protect the rights of workers without
qualification as to the place of
employment.119 In both cases, the workers
are deprived of their expected salary, which
they could have earned had they not been
illegally dismissed. For both workers, this
deprivation translates to economic insecurity
and disparity.120 The same is true for the
distinctions between overseas workers with
an employment contract of less than one
year and overseas workers with at least one
year of employment contract, and between
overseas workers with at least a year left in
their contracts and overseas workers with
less than a year left in their contracts when
they were illegally dismissed.
For this reason, we cannot subscribe to the
argument that [overseas workers] are
contractual employees who can never
acquire regular employment status, unlike
local workers121 because it already justifies
differentiated treatment in terms of the
computation of money claims.122cralawred
Likewise, the jurisdictional and enforcement
issues on overseas workers money claims do
not justify a differentiated treatment in the
computation of their money claims.123 If
anything, these issues justify an equal, if not

greater protection and assistance to

overseas workers who generally are more
prone to exploitation given their physical
distance from our government.
We also find that the classifications are not
relevant to the purpose of the law, which is
to establish a higher standard of protection
and promotion of the welfare of migrant
workers, their families and overseas Filipinos
in distress, and for other purposes.124
Further, we find specious the argument that
reducing the liability of placement agencies
redounds to the benefit of the [overseas]
workers.125cralawred
Putting a cap on the money claims of certain
overseas workers does not increase the
standard of protection afforded to them. On
the other hand, foreign employers are more
incentivized by the reinstated clause to enter
into contracts of at least a year because it
gives them more flexibility to violate our
overseas workers rights. Their liability for
arbitrarily terminating overseas workers is
decreased at the expense of the workers
whose rights they violated. Meanwhile, these
overseas workers who are impressed with an
expectation of a stable job overseas for the
longer contract period disregard other
opportunities only to be terminated earlier.
They are left with claims that are less than
what others in the same situation would
receive. The reinstated clause, therefore,
creates a situation where the law meant to
protect them makes violation of rights easier
and simply benign to the violator.
As Justice Brion said in his concurring opinion
in Serrano:chanRoblesvirtualLawlibrary
Section 10 of R.A. No. 8042 affects these
well-laid rules and measures, and in fact
provides a hidden twist affecting the
principal/employers liability. While intended
as an incentive accruing to
recruitment/manning agencies, the law, as
worded, simply limits the OFWs recovery in
wrongful dismissal situations. Thus, it
redounds to the benefit of whoever may be
liable, including the principal/employer the
direct employer primarily liable for the
wrongful dismissal. In this sense, Section 10
read as a grant of incentives to
recruitment/manning agencies oversteps
what it aims to do by effectively limiting
what is otherwise the full liability of the
foreign principals/employers. Section 10, in

short, really operates to benefit the wrong

party and allows that party, without
justifiable reason, to mitigate its liability for
wrongful dismissals. Because of this hidden
twist, the limitation of liability under Section
10 cannot be an appropriate incentive, to
borrow the term that R.A. No. 8042 itself
uses to describe the incentive it envisions
under its purpose clause.
What worsens the situation is the chosen
mode of granting the incentive: instead of a
grant that, to encourage greater efforts at
recruitment, is directly related to extra
efforts undertaken, the law simply limits their
liability for the wrongful dismissals of already
deployed OFWs. This is effectively a legallyimposed partial condonation of their liability
to OFWs, justified solely by the laws intent
to encourage greater deployment efforts.
Thus, the incentive, from a more practical
and realistic view, is really part of a scheme
to sell Filipino overseas labor at a bargain for
purposes solely of attracting the market. . . .
The so-called incentive is rendered
particularly odious by its effect on the OFWs
the benefits accruing to the
recruitment/manning agencies and their
principals are taken from the pockets of the
OFWs to whom the full salaries for the
unexpired portion of the contract rightfully
belong. Thus, the principals/employers and
the recruitment/manning agencies even
profit from their violation of the security of
tenure that an employment contract
embodies. Conversely, lesser protection is
afforded the OFW, not only because of the
lessened recovery afforded him or her by
operation of law, but also because this same
lessened recovery renders a wrongful
dismissal easier and less onerous to
undertake; the lesser cost of dismissing a
Filipino will always be a consideration a
foreign employer will take into account in
termination of employment decisions. . . .126
Further, [t]here can never be a justification
for any form of government action that
alleviates the burden of one sector, but
imposes the same burden on another sector,
especially when the favored sector is
composed of private businesses such as
placement agencies, while the
disadvantaged sector is composed of OFWs
whose protection no less than the
Constitution commands. The idea that

private business interest can be elevated to

the level of a compelling state interest is
odious.127cralawred
Along the same line, we held that the
reinstated clause violates due process rights.
It is arbitrary as it deprives overseas workers
of their monetary claims without any
discernable valid purpose.128cralawred
Respondent Joy Cabiles is entitled to her
salary for the unexpired portion of her
contract, in accordance with Section 10 of
Republic Act No. 8042. The award of the
three-month equivalence of respondents
salary must be modified accordingly. Since
she started working on June 26, 1997 and
was terminated on July 14, 1997, respondent
is entitled to her salary from July 15, 1997 to
June 25, 1998. To rule otherwise would be
iniquitous to petitioner and other OFWs, and
would, in effect, send a wrong signal that
principals/employers and
recruitment/manning agencies may violate
an OFWs security of tenure which an
employment contract embodies and actually
profit from such violation based on an
unconstitutional provision of
law.129cralawred
III. On the interest rate, the Bangko Sentral
ng Pilipinas Circular No. 799 of June 21,
2013, which revised the interest rate for loan
or forbearance from 12% to 6% in the
absence of stipulation, applies in this case.
The pertinent portions of Circular No. 799,
Series of 2013,
read:chanRoblesvirtualLawlibrary
The Monetary Board, in its Resolution No.
796 dated 16 May 2013, approved the
following revisions governing the rate of
interest in the absence of stipulation in loan
contracts, thereby amending Section 2 of
Circular No. 905, Series of
1982:cralawlawlibrary
Section 1. The rate of interest for the loan or
forbearance of any money, goods or credits
and the rate allowed in judgments, in the
absence of an express contract as to such
rate of interest, shall be six percent (6%) per
annum.
Section 2. In view of the above, Subsection
X305.1 of the Manual of Regulations for
Banks and Sections 4305Q.1, 4305S.3 and
4303P.1 of the Manual of Regulations for

Non-Bank Financial Institutions are hereby

amended accordingly.
This Circular shall take effect on 1 July 2013.
Through the able ponencia of Justice
Diosdado Peralta, we laid down the
guidelines in computing legal interest in
Nacar v. Gallery Frames:130cralawred
II. With regard particularly to an award of
interest in the concept of actual and
compensatory damages, the rate of interest,
as well as the accrual thereof, is imposed, as
follows:chanRoblesvirtualLawlibrary
When the obligation is breached, and it
consists in the payment of a sum of money,
i.e., a loan or forbearance of money, the
interest due should be that which may have
been stipulated in writing. Furthermore, the
interest due shall itself earn legal interest
from the time it is judicially demanded. In the
absence of stipulation, the rate of interest
shall be 6% per annum to be computed from
default, i.e., from judicial or extrajudicial
demand under and subject to the provisions
of Article 1169 of the Civil Code.
When an obligation, not constituting a loan
or forbearance of money, is breached, an
interest on the amount of damages awarded
may be imposed at the discretion of the
court at the rate of 6% per annum. No
interest, however, shall be adjudged on
unliquidated claims or damages, except
when or until the demand can be established
with reasonable certainty. Accordingly, where
the demand is established with reasonable
certainty, the interest shall begin to run from
the time the claim is made judicially or
extrajudicially (Art. 1169, Civil Code), but
when such certainty cannot be so reasonably
established at the time the demand is made,
the interest shall begin to run only from the
date the judgment of the court is made (at
which time the quantification of damages
may be deemed to have been reasonably
ascertained). The actual base for the
computation of legal interest shall, in any
case, be on the amount finally adjudged.
When the judgment of the court awarding a
sum of money becomes final and executory,
the rate of legal interest, whether the case
falls under paragraph 1 or paragraph 2,
above, shall be 6% per annum from such
finality until its satisfaction, this interim

period being deemed to be by then an

equivalent to a forbearance of credit.
And, in addition to the above, judgments that
have become final and executory prior to July
1, 2013, shall not be disturbed and shall
continue to be implemented applying the
rate of interest fixed therein.131
Circular No. 799 is applicable only in loans
and forbearance of money, goods, or credits,
and in judgments when there is no
stipulation on the applicable interest rate.
Further, it is only applicable if the judgment
did not become final and executory before
July 1, 2013.132cralawred
We add that Circular No. 799 is not
applicable when there is a law that states
otherwise. While the Bangko Sentral ng
Pilipinas has the power to set or limit interest
rates,133 these interest rates do not apply
when the law provides that a different
interest rate shall be applied. [A] Central
Bank Circular cannot repeal a law. Only a law
can repeal another law.134cralawred
For example, Section 10 of Republic Act No.
8042 provides that unlawfully terminated
overseas workers are entitled to the
reimbursement of his or her placement fee
with an interest of 12% per annum. Since
Bangko Sentral ng Pilipinas circulars cannot
repeal Republic Act No. 8042, the issuance of
Circular No. 799 does not have the effect of
changing the interest on awards for
reimbursement of placement fees from 12%
to 6%. This is despite Section 1 of Circular
No. 799, which provides that the 6% interest
rate applies even to judgments.
Moreover, laws are deemed incorporated in
contracts. The contracting parties need not
repeat them. They do not even have to be
referred to. Every contract, thus, contains not
only what has been explicitly stipulated, but
the statutory provisions that have any
bearing on the matter.135 There is,
therefore, an implied stipulation in contracts
between the placement agency and the
overseas worker that in case the overseas
worker is adjudged as entitled to
reimbursement of his or her placement fees,
the amount shall be subject to a 12%
interest per annum. This implied stipulation
has the effect of removing awards for
reimbursement of placement fees from
Circular No. 799s coverage.

The same cannot be said for awards of salary

for the unexpired portion of the employment
contract under Republic Act No. 8042. These
awards are covered by Circular No. 799
because the law does not provide for a
specific interest rate that should apply.
In sum, if judgment did not become final and
executory before July 1, 2013 and there was
no stipulation in the contract providing for a
different interest rate, other money claims
under Section 10 of Republic Act No. 8042
shall be subject to the 6% interest per
annum in accordance with Circular No. 799.
This means that respondent is also entitled
to an interest of 6% per annum on her
money claims from the finality of this
judgment.
IV. Finally, we clarify the liabilities of Wacoal
as principal and petitioner as the
employment agency that facilitated
respondents overseas employment.
Section 10 of the Migrant Workers and
Overseas Filipinos Act of 1995 provides that
the foreign employer and the local
employment agency are jointly and severally
liable for money claims including claims
arising out of an employer-employee
relationship and/or damages. This section
also provides that the performance bond
filed by the local agency shall be answerable
for such money claims or damages if they
were awarded to the employee.
This provision is in line with the states policy
of affording protection to labor and
alleviating workers plight.136cralawred
In overseas employment, the filing of money
claims against the foreign employer is
attended by practical and legal
complications. The distance of the foreign
employer alone makes it difficult for an
overseas worker to reach it and make it
liable for violations of the Labor Code. There
are also possible conflict of laws,
jurisdictional issues, and procedural rules
that may be raised to frustrate an overseas
workers attempt to advance his or her
claims.
It may be argued, for instance, that the
foreign employer must be impleaded in the
complaint as an indispensable party without
which no final determination can be had of
an action.137cralawred

The provision on joint and several liability in

the Migrant Workers and Overseas Filipinos
Act of 1995 assures overseas workers that
their rights will not be frustrated with these
complications.
The fundamental effect of joint and several
liability is that each of the debtors is liable
for the entire obligation.138 A final
determination may, therefore, be achieved
even if only one of the joint and several
debtors are impleaded in an action. Hence, in
the case of overseas employment, either the
local agency or the foreign employer may be
sued for all claims arising from the foreign
employers labor law violations. This way, the
overseas workers are assured that someone
the foreign employers local agent may
be made to answer for violations that the
foreign employer may have committed.
The Migrant Workers and Overseas Filipinos
Act of 1995 ensures that overseas workers
have recourse in law despite the
circumstances of their employment. By
providing that the liability of the foreign
employer may be enforced to the full
extent139 against the local agent, the
overseas worker is assured of immediate and
sufficient payment of what is due
them.140cralawred
Corollary to the assurance of immediate
recourse in law, the provision on joint and
several liability in the Migrant Workers and
Overseas Filipinos Act of 1995 shifts the
burden of going after the foreign employer
from the overseas worker to the local
employment agency. However, it must be
emphasized that the local agency that is held
to answer for the overseas workers money
claims is not left without remedy. The law
does not preclude it from going after the
foreign employer for reimbursement of
whatever payment it has made to the
employee to answer for the money claims
against the foreign employer.
A further implication of making local
agencies jointly and severally liable with the
foreign employer is that an additional layer
of protection is afforded to overseas workers.
Local agencies, which are businesses by
nature, are inoculated with interest in being
always on the lookout against foreign
employers that tend to violate labor law. Lest
they risk their reputation or finances, local
agencies must already have mechanisms for

guarding against unscrupulous foreign

employers even at the level prior to overseas
employment applications.
With the present state of the pleadings, it is
not possible to determine whether there was
indeed a transfer of obligations from
petitioner to Pacific. This should not be an
obstacle for the respondent overseas worker
to proceed with the enforcement of this
judgment. Petitioner is possessed with the
resources to determine the proper legal
remedies to enforce its rights against Pacific,
if any.
V. Many times, this court has spoken on what
Filipinos may encounter as they travel into
the farthest and most difficult reaches of our
planet to provide for their families. In Prieto
v. NLRC:141cralawred
The Court is not unaware of the many abuses
suffered by our overseas workers in the
foreign land where they have ventured,
usually with heavy hearts, in pursuit of a
more fulfilling future. Breach of contract,
maltreatment, rape, insufficient
nourishment, sub-human lodgings, insults
and other forms of debasement, are only a
few of the inhumane acts to which they are
subjected by their foreign employers, who
probably feel they can do as they please in
their own country. While these workers may
indeed have relatively little defense against
exploitation while they are abroad, that
disadvantage must not continue to burden
them when they return to their own territory
to voice their muted complaint. There is no
reason why, in their very own land, the
protection of our own laws cannot be
extended to them in full measure for the
redress of their grievances.142chanrobleslaw
But it seems that we have not said enough.
We face a diaspora of Filipinos. Their travails
and their heroism can be told a million times
over; each of their stories as real as any
other. Overseas Filipino workers brave alien
cultures and the heartbreak of families left
behind daily. They would count the minutes,
hours, days, months, and years yearning to
see their sons and daughters. We all know of
the joy and sadness when they come home
to see them all grown up and, being so, they
remember what their work has cost them.
Twitter accounts, Facetime, and many other

gadgets and online applications will never

substitute for their lost physical presence.
Unknown to them, they keep our economy
afloat through the ebb and flow of political
and economic crises. They are our true
diplomats, they who show the world the
resilience, patience, and creativity of our
people. Indeed, we are a people who
contribute much to the provision of material
creations of this world.
This government loses its soul if we fail to
ensure decent treatment for all Filipinos. We
default by limiting the contractual wages
that should be paid to our workers when
their contracts are breached by the foreign
employers. While we sit, this court will
ensure that our laws will reward our overseas
workers with what they deserve: their
dignity.
Inevitably, their dignity is ours as well.
WHEREFORE, the petition is DENIED. The
decision of the Court of Appeals is AFFIRMED
with modification. Petitioner Sameer
Overseas Placement Agency is ORDERED to
pay respondent Joy C. Cabiles the amount
equivalent to her salary for the unexpired
portion of her employment contract at an
interest of 6% per annum from the finality of
this judgment. Petitioner is also ORDERED to
reimburse respondent the withheld
NT$3,000.00 salary and pay respondent
attorneys fees of NT$300.00 at an interest
of 6% per annum from the finality of this
judgment.
The clause, or for three (3) months for every
year of the unexpired term, whichever is
less in Section 7 of Republic Act No. 10022
amending Section 10 of Republic Act No.
8042 is declared unconstitutional and,
therefore, null and void.
SO ORDERED.

Bartolome v SSS
Nature of the Case
This Appeal, filed under Rule 43 of the Rules
of Court, seeks to annul the March 17, 2010
Decision1 of the Employees Compensation
Commission (ECC) in ECC Case No. SL18483-0218-10, entitled Bernardina P.
Bartolome v. Social Security System (SSS)

[Scanmar Maritime Services, Inc.}, declaring

that petitioner is not a beneficiary of the
deceased employee under Presidential
Decree No. (PD) 442, otherwise known as the
Labor Code of the Philippines, as amended
by PD 626.2
The Facts
John Colcol (John), born on June 9, 1983, was
employed as electrician by Scanmar
Maritime Services, Inc., on board the vessel
Maersk Danville, since February 2008. As
such, he was enrolled under the
government's Employees' Compensation
Program (ECP).3 Unfortunately, on June 2,
2008, an accident occurred on board the
vessel whereby steel plates fell on John,
which led to his untimely death the following
day.4
John was, at the time of his death, childless
and unmarried. Thus, petitioner Bernardina P.
Bartolome, Johns biological mother and,
allegedly, sole remaining beneficiary, filed a
claim for death benefits under PD 626 with
the Social Security System (SSS) at San
Fernando City, La Union. However, the SSS
La Union office, in a letter dated June 10,
20095 addressed to petitioner, denied the
claim, stating:
We regret to inform you that wecannot give
due course to your claim because you are no
longer considered as the parent of JOHN
COLCOL as he was legally adopted by
CORNELIO COLCOL based on documents you
submitted to us.
The denial was appealed tothe Employees
Compensation Commission (ECC), which
affirmed the ruling of the SSS La Union
Branch through the assailed Decision, the
dispositive portion of which reads:
WHEREFORE, the appealed decision is
AFFIRMED and the claim is hereby dismissed
for lack of merit.
SO ORDERED.6
In denying the claim, both the SSS La Union
branch and the ECC ruled against petitioners
entitlement to the death benefits sought
after under PD 626 on the ground she can no
longer be considered Johns primary
beneficiary. As culled from the records, John
and his sister Elizabeth were adopted by
their great grandfather, petitioners

grandfather, Cornelio Colcol (Cornelio), by

virtue of the Decision7 in Spec. Proc. No.
8220-XII of the Regional Trial Court in Laoag
City dated February 4, 1985, which decree of
adoption attained finality.8 Consequently, as
argued by the agencies, it is Cornelio who
qualifies as Johns primary beneficiary, not
petitioner. Neither, the ECC reasoned, would
petitioner qualify as Johns secondary
beneficiary even if it wereproven that
Cornelio has already passed away. As the
ECC ratiocinated:
Under Article 167 (j) of P.D. 626, as
amended, provides (sic) that beneficiaries
are the "dependent spouse until he remarries
and dependent children, who are the primary
beneficiaries. In their absence, the
dependent parentsand subject to the
restrictions imposed on dependent children,
the illegitimate children and legitimate
descendants who are the secondary
beneficiaries; Provided; that the dependent
acknowledged natural child shall be
considered as a primary beneficiary when
there are no other dependent children who
are qualified and eligible for monthly income
benefit."
The dependent parent referred to by the
above provision relates to the legitimate
parent of the covered member, as provided
for by Rule XV, Section 1 (c) (1) of the
Amended Rules on Employees
Compensation. This Commission believes
that the appellant is not considered a
legitimate parent of the deceased, having
given up the latter for adoption to Mr.
Cornelio C. Colcol. Thus, in effect, the
adoption divested her of the statusas the
legitimate parent of the deceased.
In effect, the rights which previously belong
[sic] to the biological parent of the adopted
child shall now be upon the adopting parent.
Hence, in this case, the legal parent referred
to by P.D. 626, as amended, as the
beneficiary, who has the right to file the
claim, is the adoptive father of the deceased
and not herein appellant.9 (Emphasis
supplied)
Aggrieved, petitioner filed a Motion for
Reconsideration, which was likewise denied
by the ECC.10 Hence, the instant petition.
The Issues

Petitioner raises the following issues in the

petition:
ASSIGNMENT OF ERRORS
I. The Honorable ECCs Decision is contrary
to evidence on record.
II. The Honorable ECC committed grave
abuse in denying the just, due and lawful
claims of the petitioner as a lawful
beneficiary of her deceased biological son.
III. The Honorable ECC committed grave
abuse of discretion in not giving due
course/denying petitioners otherwise
meritorious motion for reconsideration.11
In resolving the case, the pivotal issue is this:
Are the biological parents of the covered, but
legally adopted, employee considered
secondary beneficiaries and, thus, entitled,
in appropriate cases, to receive the benefits
under the ECP?
The Court's Ruling
The petition is meritorious.
The ECCs factual findings are not consistent
with the evidence on record
To recall, one of the primary reasons why the
ECC denied petitioners claim for death
benefits is that eventhough she is Johns
biological mother, it was allegedly not
proven that his adoptive parent, Cornelio,
was no longer alive. As intimated by the ECC:
Moreover, there had been no allegation in
the records as to whether the legally
adoptive parent, Mr. Colcol, is dead, which
would immediately qualify the appellant
[petitioner] for Social Security benefits.
Hence, absent such proof of death of the
adoptive father, this Commission will
presume him to be alive and well, and as
such, is the one entitled to claim the benefit
being the primary beneficiary of the
deaceased. Thus, assuming that appellant is
indeed a qualified beneficiary under the
Social Security law, in view of her status as
other beneficiary, she cannot claim the
benefit legally provided by law to the
primary beneficiary, in this case the adoptive
father since he is still alive.
We disagree with the factual finding of the
ECC on this point.

Generally, findings of fact by administrative

agencies are generally accorded great
respect, if not finality, by the courts by
reason of the special knowledge and
expertise of said administrative agenciesover
matters falling under their jurisdiction.12
However, in the extant case, the ECC had
overlooked a crucial piece of evidence
offered by the petitioner Cornelios death
certificate.13
Based on Cornelios death certificate, it
appears that Johns adoptive father died on
October 26, 1987,14 or only less than three
(3) years since the decree of adoption on
February 4, 1985, which attained finality.15
As such, it was error for the ECC to have
ruled that it was not duly proven that the
adoptive parent, Cornelio, has already
passed away.
The rule limiting death benefits claims to the
legitimate parents is contrary to law
This brings us to the question of whether or
not petitioner is entitled to the death
benefits claim in view of Johns work-related
demise. The pertinent provision, in this
regard, is Article 167 (j) of the Labor Code, as
amended, which reads:
ART. 167. Definition of terms. - Asused in this
Title unless the context indicates otherwise:
(j) 'Beneficiaries' means the dependent
spouse until he remarries and dependent
children, who are the primary beneficiaries.
In their absence, the dependent parents and
subject to the restrictions imposed on
dependent children, the illegitimate children
and legitimate descendants who are the
secondary beneficiaries; Provided, that the
dependent acknowledged natural child shall
be considered as a primary beneficiary when
there are no other dependent children who
are qualified and eligible for monthly income
benefit. (Emphasis supplied)
Concurrently, pursuant to the succeeding
Article 177(c) supervising the ECC "[T]o
approve rules and regulations governing the
processing of claims and the settlement of
disputes arising therefrom as prescribed by
the System," the ECC has issued the
Amended Rules on Employees
Compensation, interpreting the above-cited
provision as follows:
RULE XV BENEFICIARIES

SECTION 1. Definition. (a) Beneficiaries shall

be either primary or secondary, and
determined atthe time of employees death.
(b) The following beneficiaries shall be
considered primary:
(1) The legitimate spouse living with the
employee at the time of the employees
death until he remarries; and
(2) Legitimate, legitimated, legally adopted
or acknowledged natural children, who are
unmarried not gainfully employed, not over
21 years of age, or over 21 years of age
provided that he is incapacitated and
incapable of self - support due to physicalor
mental defect which is congenital or acquired
during minority; Provided, further, that a
dependent acknowledged natural child shall
be considered as a primary beneficiary only
when there are no other dependent children
who are qualified and eligible for monthly
income benefit; provided finally, that if there
are two or more acknowledged natural
children, they shall be counted from the
youngest and without substitution, but not
exceeding five.
(c) The following beneficiaries shall be
considered secondary:
(1) The legitimate parentswholly dependent
upon the employee for regular support;
(2) The legitimate descendants and
illegitimate children who are unmarried, not
gainfully employed, and not over 21 years of
age, or over 21 years of age providedthat he
is incapacitated and incapable of self support dueto physical or mental defect
which is congenital or acquired during
minority. (Emphasis supplied)
Guilty of reiteration, the ECC denied
petitioners claim on the ground that she is
no longer the deceaseds legitimate parent,
as required by the implementing rules. As
held by the ECC, the adoption decree
severed the relation between John and
petitioner, effectively divesting her of the
status of a legitimate parent, and,
consequently, that of being a secondary
beneficiary.
We disagree.
a. Rule XV, Sec. 1(c)(1) of the Amended
Rules on Employees Compensation deviates

from the clear language of Art. 167 (j) of the

Labor Code, as amended
Examining the Amended Rules on
Employees Compensation in light of the
Labor Code, as amended, it is at once
apparent that the ECC indulged in an
unauthorized administrative legislation. In
net effect, the ECC read into Art. 167 of the
Code an interpretation not contemplated by
the provision. Pertinent in elucidating on this
point isArticle 7 of the Civil Code of the
Philippines, which reads:
Article 7. Laws are repealed only by
subsequent ones, and their violation or nonobservance shall not beexcused by disuse, or
custom or practice to the contrary.
When the courts declared a law to be
inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and
regulations shall be valid only when they are
not contrary to the laws or the Constitution.
(Emphasis supplied)
As applied, this Court held in Commissioner
of Internal Revenue v. Fortune Tobacco
Corporation16 that:
As we have previously declared, rule-making
power must be confined to details for
regulating the mode or proceedings in order
to carry into effect the law as it has been
enacted, and it cannot be extended to
amend or expand the statutory requirements
or to embrace matters not covered by the
statute. Administrative regulations must
always be in harmony with the provisions of
the law because any resulting discrepancy
between the two will always be resolved in
favor of the basic law. (Emphasis supplied)
Guided by this doctrine, We find that Rule XV
of the Amended Rules on Employees
Compensation is patently a wayward
restriction of and a substantial deviation
from Article 167 (j) of the Labor Code when it
interpreted the phrase "dependent parents"
to refer to "legitimate parents."
It bears stressing that a similar issue in
statutory construction was resolved by this
Court in Diaz v. Intermediate Appellate
Court17 in this wise:

It is Our shared view that the word

"relatives" should be construed in its general
acceptation. Amicus curiae Prof. Ruben
Balane has this to say:
The term relatives, although used many
times in the Code, is not defined by it. In
accordancetherefore with the canons of
statutory interpretation, it should
beunderstood to have a general and
inclusive scope, inasmuch as the term is a
general one. Generalia verba sunt
generaliter intelligenda. That the law does
not make a distinction prevents us from
making one: Ubi lex non distinguit, nec nos
distinguera debemus. xxx
According to Prof. Balane, to interpret the
term relatives in Article 992 in a more
restrictive sense thanit is used and intended
is not warranted by any rule ofinterpretation.
Besides, he further states that when the law
intends to use the termin a more restrictive
sense, it qualifies the term with the word
collateral, as in Articles 1003 and 1009 of the
New Civil Code.
Thus, the word "relatives" is a general term
and when used in a statute it embraces not
only collateral relatives but also all the
kindred of the person spoken of, unless the
context indicates that it was used in a more
restrictive or limited sense which as
already discussed earlier, is not so in the
case at bar. (Emphasis supplied)
In the same vein, the term "parents" in the
phrase "dependent parents" in the aforequoted Article 167 (j) of the Labor Code is
usedand ought to be taken in its general
sense and cannot be unduly limited to
"legitimate parents" as what the ECC did.
The phrase "dependent parents" should,
therefore, include all parents, whether
legitimate or illegitimate and whether by
nature or by adoption. When the law does
not distinguish, one should not distinguish.
Plainly, "dependent parents" are parents,
whether legitimate or illegitimate, biological
or by adoption,who are in need of support or
assistance.
Moreover, the same Article 167 (j),as
couched, clearly shows that Congress did not
intend to limit the phrase "dependent
parents" to solely legitimate parents. At the
risk of being repetitive, Article 167 provides
that "in their absence, the dependent

parents and subject to the restrictions

imposed on dependent children, the
illegitimate children and legitimate
descendants who are secondary
beneficiaries." Had the lawmakers
contemplated "dependent parents" to mean
legitimate parents, then it would have simply
said descendants and not "legitimate
descendants." The manner by which the
provision in question was crafted undeniably
show that the phrase "dependent parents"
was intended to cover all parents
legitimate, illegitimate or parents by nature
or adoption.
b. Rule XV, Section 1(c)(1) of the Amended
Rules on Employees Compensation is in
contravention of the equal protection clause
To insist that the ECC validly interpreted the
Labor Code provision is an affront to the
Constitutional guarantee of equal protection
under the laws for the rule, as worded,
prevents the parents of an illegitimate child
from claiming benefits under Art. 167 (j) of
the Labor Code, as amended by PD 626. To
Our mind, such postulation cannot be
countenanced.
As jurisprudence elucidates, equal protection
simply requires that all persons or things
similarly situated should be treated alike,
both as to rights conferred and
responsibilities imposed. It requires public
bodies and institutions to treat similarly
situated individuals in a similar manner.18 In
other words, the concept of equal justice
under the law requires the state to govern
impartially, and it may not drawdistinctions
between individuals solely on differences
that are irrelevant to a legitimate
governmental objective.19
The concept of equal protection, however,
does not require the universal application of
the laws to all persons or things without
distinction. What it simply requires isequality
among equals as determined according to a
valid classification. Indeed, the equal
protection clause permits classification. Such
classification, however, to be valid must pass
the test of reasonableness. The test has four
requisites: (1) The classification rests on
substantial distinctions; (2) It is germane
tothe purpose of the law; (3) It is not limited
to existing conditions only; and (4) It applies
equally to all members of the same class.

"Superficial differences do not make for a

valid classification."20
In the instant case, there is no compelling
reasonable basis to discriminate against
illegitimate parents. Simply put, the abovecited rule promulgated by the ECC that limits
the claim of benefits to the legitimate
parents miserably failed the test of
reasonableness since the classification is not
germane to the law being implemented. We
see no pressing government concern or
interest that requires protection so as to
warrant balancing the rights of unmarried
parents on one hand and the rationale
behind the law on the other. On the contrary,
the SSS can better fulfill its mandate, and
the policy of PD 626 that employees and
their dependents may promptly secure
adequate benefits in the event of workconnected disability or death - will be better
served if Article 167 (j) of the Labor Code is
not so narrowly interpreted.
There being no justification for limiting
secondary parent beneficiaries to the
legitimate ones, there can be no other
course of action to take other than to
strikedown as unconstitutional the phrase
"illegitimate" as appearing in Rule XV,
Section 1(c)(1) of the Amended Rules on
Employees Compensation.
Petitioner qualifies as Johns dependent
parent
In attempting to cure the glaring
constitutional violation of the adverted rule,
the ECC extended illegitimate parents an
opportunity to file claims for and receive
death benefitsby equating dependency and
legitimacy to the exercise of parental
authority. Thus, as insinuated by the ECC in
its assailed Decision, had petitioner not given
up John for adoption, she could have still
claimed death benefits under the law.
To begin with, nowhere in the law nor in the
rules does it say that "legitimate parents"
pertain to those who exercise parental
authority over the employee enrolled under
the ECP. Itwas only in the assailed Decision
wherein such qualification was made. In
addition, assuming arguendothat the ECC did
not overstep its boundaries in limiting the
adverted Labor Code provision to the
deceaseds legitimate parents, and that the
commission properly equated legitimacy to

parental authority, petitioner can still qualify

as Johns secondary beneficiary.
True, when Cornelio, in 1985, adoptedJohn,
then about two (2) years old, petitioners
parental authority over John was severed.
However, lest it be overlooked, one key
detail the ECC missed, aside from Cornelios
death, was that when the adoptive parent
died less than three (3) years after the
adoption decree, John was still a minor, at
about four (4) years of age.
Johns minority at the time of his adopters
death is a significant factor in the case at
bar. Under such circumstance, parental
authority should be deemed to have reverted
in favor of the biological parents. Otherwise,
taking into account Our consistent ruling that
adoption is a personal relationship and that
there are no collateral relatives by virtue of
adoption,21 who was then left to care for the
minor adopted child if the adopter passed
away?
To be sure, reversion of parental authority
and legal custody in favor of the biological
parents is not a novel concept. Section 20 of
Republic Act No. 855222 (RA 8552),
otherwise known as the Domestic Adoption
Act, provides:
Section 20. Effects of Rescission. If the
petition [for rescission of adoption] is
granted, the parental authority of the
adoptee's biological parent(s), if known, or
the legal custody of the Department shall be
restored if the adoptee is still a minoror
incapacitated. The reciprocal rights and
obligations of the adopter(s) and the adoptee
to each other shall be extinguished.
(emphasis added)
The provision adverted to is applicable
herein by analogy insofar as the restoration
of custody is concerned.1wphi1 The manner
herein of terminating the adopters parental
authority, unlike the grounds for
rescission,23 justifies the retention of vested
rights and obligations between the adopter
and the adoptee, while the consequent
restoration of parental authority in favor of
the biological parents, simultaneously,
ensures that the adoptee, who is still a
minor, is not left to fend for himself at such a
tender age.

To emphasize, We can only apply the rule by

analogy, especially since RA 8552 was
enacted after Cornelios death. Truth be told,
there is a lacuna in the law as to which
provision shall govern contingencies in all
fours with the factual milieu of the instant
petition. Nevertheless, We are guided by the
catena of cases and the state policies behind
RA 855224 wherein the paramount
consideration is the best interest of the child,
which We invoke to justify this disposition. It
is, after all, for the best interest of the child
that someone will remain charged for his
welfare and upbringing should his or her
adopter fail or is rendered incapacitated to
perform his duties as a parent at a time the
adoptee isstill in his formative years, and, to
Our mind, in the absence or, as in this case,
death of the adopter, no one else could
reasonably be expected to perform the role
of a parent other than the adoptees
biological one.
Moreover, this ruling finds support on the
fact that even though parental authority is
severed by virtue of adoption, the ties
between the adoptee and the biological
parents are not entirely eliminated. To
demonstrate, the biological parents, insome
instances, are able to inherit from the
adopted, as can be gleaned from Art. 190 of
the Family Code:
Art. 190. Legal or intestate succession to the
estate of the adopted shall be governed by
the following rules:
(2) When the parents, legitimate or
illegitimate, or the legitimate ascendants of
the adopted concur withthe adopter, they
shall divide the entire estate, one-half tobe
inherited by the parents or ascendants and
the other half, by the adopters;
(6) When only collateral blood relatives of
the adopted survive, then the ordinary rules
of legal or intestate succession shall apply.
Similarly, at the time of Cornelio Colcols
death, which was prior to the effectivity of
the Family Code, the governing provision is
Art. 984 of the New Civil Code, which
provides:
Art. 984. In case of the death of an adopted
child, leaving no children or descendants, his
parents and relatives by consanguinity and
not by adoption, shall be his legal heirs.

From the foregoing, it is apparent that the

biological parents retain their rights of
succession tothe estate of their child who
was the subject of adoption. While the
benefits arising from the death of an SSS
covered employee do not form part of the
estateof the adopted child, the pertinent
provision on legal or intestate succession at
least reveals the policy on the rights of the
biological parents and those by adoption vis-vis the right to receive benefits from the
adopted. In the same way that certain rights
still attach by virtue of the blood relation, so
too should certain obligations, which, We
rule, include the exercise of parental
authority, in the event of the untimely
passing of their minor offsprings adoptive
parent. We cannot leave undetermined the
fate of a minor child whose second chance
ata better life under the care of the adoptive
parents was snatched from him by deaths
cruel grasp. Otherwise, the adopted childs
quality of life might have been better off not
being adopted at all if he would only find
himself orphaned in the end. Thus, We hold
that Cornelios death at the time of
Johnsminority resulted in the restoration of
petitioners parental authority over the
adopted child.
On top of this restoration of parental
authority, the fact of petitioners dependence
on John can be established from the
documentary evidence submitted to the ECC.
As it appears in the records, petitioner, prior
to Johns adoption, was a housekeeper. Her
late husband died in 1984, leaving her to
care for their seven (7) children. But since
she was unable to "give a bright future to her
growing children" as a housekeeper, she
consented to Cornelios adoption of Johnand
Elizabeth in 1985.
Following Cornelios death in 1987, so
records reveal, both petitioner and John
repeatedly reported "Brgy. Capurictan,
Solsona, Ilocos Norte" as their residence. In
fact, this veryaddress was used in Johns
Death Certificate25 executed in Brazil, and in
the Report of Personal Injury or Loss of Life
accomplished by the master of the vessel
boarded by John.26 Likewise, this is Johns
known address as per the ECCs assailed
Decision.27 Similarly, this same address was
used by petitioner in filing her claim before

the SSS La Union branch and, thereafter, in

her appeal with the ECC. Hence, it can be
assumed that aside from having been
restored parental authority over John,
petitioner indeed actually execised the same,
and that they lived together under one roof.
Moreover, John, in his SSS application,28
named petitioner as one of his beneficiaries
for his benefits under RA 8282, otherwise
known as the "Social Security Law." While RA
8282 does not cover compensation for workrelated deaths or injury and expressly allows
the designation of beneficiaries who are not
related by blood to the member unlike in PD
626, Johns deliberate act of indicating
petitioner as his beneficiary at least evinces
that he, in a way, considered petitioner as
his dependent. Consequently, the confluence
of circumstances from Cornelios death
during Johns minority, the restoration
ofpetitioners parental authority, the
documents showing singularity of address,
and Johns clear intention to designate
petitioner as a beneficiary - effectively made
petitioner, to Our mind, entitled to death
benefit claims as a secondary beneficiary
under PD 626 as a dependent parent.
All told, the Decision of the ECC dated March
17, 2010 is bereft of legal basis. Cornelios
adoption of John, without more, does not
deprive petitioner of the right to receive the
benefits stemming from Johns death as a
dependent parent given Cornelios untimely
demise during Johns minority. Since the
parent by adoption already died, then the
death benefits under the Employees'
Compensation Program shall accrue solely to
herein petitioner, John's sole remaining
beneficiary.
WHEREFORE, the petition is hereby
GRANTED. The March 17, 2010 Decision of
the Employees' Compensation Commission,
in ECC Case No. SL-18483-0218-10, is
REVERSED and SET ASIDE. The ECC is hereby
directed to release the benefits due to a
secondary beneficiary of the deceased
covered employee John Colcol to petitioner
Bernardina P. Bartolome.
No costs.
SO ORDERED.